Her Majesty the Queen - v. -, 2014 SKPC 150

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 150 Date: July 24, 2014 Information #s: 44658836, 39985092, 44802893, 44659235, 43986724, 43266417, 44330447, 46420419, 42799178, 37290766, 36653086, 44303351, 44303524, 36654811, 44332045, 33303772, 38468315, 44664085, 44664475 Location: Saskatoon ___________________________________________________________________________________ Between: Her Majesty the Queen - and - Marlene Jane Carter Appearing: S. Bains For the Crown J. Scott For the Accused S. Pratchler, Q.C. On behalf of the Attorney General of Saskatchewan C.

Bernier On behalf of the Attorney General of Canada DECISION S. P. WHELAN, J Introduction [ 1 ] The Contents to this decision may be found on page 7. [ 2 ] The Crown brought an application to have Marlene Jane Carter declared a dangerous offender and it sought an indeterminate sentence. [ 3 ] The Defence focused on Ms. Carter’s mental health problems, the treatment that she has received in the custody of Correctional Service Canada over the past five years. Ms.

Carter’s counsel maintained that her treatment has been inhumane and in breach of sections 7, 12 and 15 of the Charter , which provide for the right to: s. 7 – life, liberty and security of the person and not to be

deprived thereof except in accordance with the principles of fundamental justice, s. 12 - not be subjected to any cruel and unusual treatment or punishment, and s. 15 - equality before and under the law and the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [ 4 ] The Defence sought relief with a view to insuring that in future Ms.

Carter would serve her sentence under conditions appropriate to a mental health facility, if not by transfer to Brockville Hospital in Ontario; then under improved conditions at the RPC, should she remain there. [ 5 ] The hearing ran from October 21 to 31, 2013. Argument occurred on March 28, 2014 and it was adjourned to today’s date for decision. [ 6 ] The focus of the dangerous offender application and this sentencing hearing has largely been in relation to institutional offences. Set out below are the two most serious convictions on her record, as well as the predicate offences for sentencing: a.

A March 1999 aggravated assault upon another inmate at Pine Grove Correctional Centre, for which she received a two year sentence, b. An April 2000 incident involving a riot at the Saskatchewan Penitentiary for Women, for which she was convicted of unlawful confinement, assault with a weapon and mischief and received a concurrent and consecutive sentence of two years, c. The two predicate offences of assault with a weapon for which I found her guilty after trial in the fall of 2012.

These offences occurred while in custody at the Regional Psychiatric Centre, Prairie Region (RPC) where the complainants were employed: i. Information #44658836, June 13, 2009, assault with a weapon, handcuffs, s. 267(

a) ii. Information #39985092, July 17, 2011, assault with a weapon, hot water, s. 267(a), d. 17 more assaults for a total of 19 predicate assaults that occurred at the RPC on or between June 13, 2009 and August 20, 2013. Complainants include correctional officers, nurses and fellow patients (inmates). [ 7 ] Ms. Carter’s mental health is such that she requires institutional care for the foreseeable future. She has been on remand at the Regional Psychiatric Centre (RPC) since December 6, 2011.

As of the date of this decision she will have been on remand for 2 years and 230 days. [ 8 ] A great number of records were filed by counsel and organized by the Defence electronically. Thirteen witnesses testified over the course of eight days. The Defence was assisted by a class of law students enrolled at the College of Law, University of Saskatchewan. Their work was evident in virtually all aspects and from time to time some of them were able to tear away from their studies to attend the hearing.

To respond to the Charter issues raised, Counsel for the Attorney General of Canada and the Attorney General of Saskatchewan, Constitutional Branch appeared for argument. The Court very much appreciates the work of all counsel and the students in particular in preparing the records electronically. [ 9 ] This is a lengthy decision; attention has been given to the background circumstances provided to the Court. There is a significant record and an unusually high number of charges for sentencing. Ms. Carter’s background before and after her encounters with the justice system is important to the decision being made.

A great number of fact-based issues were raised by the Defence concerning her treatment at the RPC over the last five years. There has been an attempt to acknowledge Ms. Carter’s incredible life story before and during her incarceration by highlighting some of the information shared with the Court.

It is hoped that our community may learn from her experiences and make changes where needed and possible, for her sake as well as others with mental health concerns, particularly for those who engage in self-harm. [ 10 ] This Court has been unable to address the many Charter issues raised by the Defence; principally due to jurisdictional issues and lacking a sufficient evidentiary basis for a determination; most issues would have to be resolved in the Federal Court of Canada or the Court of Queen’s Bench of Saskatchewan and not in the context of a criminal sentencing hearing. Nevertheless, this Court is aware

that from a practical standpoint, Ms. Carter is not likely to be able to pursue relief for the issues raised outside of these proceedings. The Office of the Correctional Investigator of Canada has raised many of these issues in the context of Ms. Carter and other federal inmates with self-harming behaviours and I expect that it will continue its work. In the result, I have endeavoured to record a great deal of the information provided I found it reliable, either because it was viva voce and firsthand or it came from one or more documented reliable sources.

Information conveyed in many of the Incident Reports was scant and often very little was said of Ms. Carter’s mental or physical state. [ 11 ] Ms. Carter is a First Nations woman. While she did not attend a residential school, her suffering can be directly linked to the disintegration of her family as a result of the residential school experience. This was evident from the Gladue Report provided to the Court.

As one elder was quoted to say: Drop a pebble in the water and it’s a ripple effect . . . it wasn’t just those that attended [residential school] who endured the harms, but generations to come. [1] [ 12 ] In her formative years Ms. Carter experienced terrible abandonment and abuse at the hands of those from whom she was entitled to receive love and support. She was betrayed repeatedly. [ 13 ] She made her pain known to those outside her immediate family with her first attempt at suicide when she was only 13 years of age; there were more suicide attempts to come.

Beginning when she was a child and continuing into adolescence and adulthood; she abused a variety of substances: solvents, alcohol and other drugs, perhaps to cope. She became caught up in a spiral of substance abuse and offending behaviour, receiving her first custodial sentence as a youth at the age of 17. [ 14 ] There were two significant gaps in her offending behaviour, the first between 1992 and 1999 during which time she married and became the mother of three boys. The second shorter gap of two years occurred prior to June 2009. [ 15 ] The full extent of Ms.

Carter’s early self-harming behaviour; is not known. It was documented in a December 1988 pre- disposition report prepared for Youth Court and it has been quite thoroughly documented since March of 2009. [ 16 ] Ms.

Carter was offered resources over time in a number of different ways; at an early age she was apprehended and placed at Ranch Ehrlo in Regina, where despite progress in the programs provided it was noted that she was unable to trust adults and coped with her pain by self-mutilating, running away, withdrawing and abusing alcohol. [ 17 ] Moving forward to the time frame most documented in these proceedings; it is Ms. Carter’s continuous stay, first in Pine Grove provincial correctional facility on remand in March 2009, and then after receiving a 30 month sentence on June 8, 2009 at the RPC.

During this time that her head banging developed into the extreme practice that has become, if not interrupted by a third party; dropping from a standing or kneeling position to the floor, face first. During the five years at the RPC her mental and physical health has continued to deteriorate and a reduction in her intellect was documented. [ 18 ] At the RPC Ms. Carter has been cared for by a good number of dedicated, thoughtful individuals: psychiatrists, psychologists, nurses, and corrections staff, including those in a social work or supervising capacity, as well as guards.

But she has also been caught up in a system which seems to lack the will or ability to make available a setting which appropriately addresses her mental health needs. Despite repeated recommendations that she be placed in a mental health facility where guards are not the first responders to self-harming behaviour, a hospital in Brockville Ontario; the system has proven unable to act upon this sensible solution. Most recently this move has not been possible as Ms. Carter has been on remand status since December 2011. [ 19 ] While Ms.

Carter has resided at the RPC, there has at times been conflict between the “correctional” side and the “clinical” side of the operation. Over time, and during the course of Ms. Carter appearing before this Court, improvements have been made, including: the move from the routine use of the Pinel Board for restraint purposes, to the use of the more comfortable Broda Chair, OC spray use, a tool used by guards to try to halt self-harming behaviour, has apparently been discontinued and Ms.

Carter’s care whether in segregation or isolation in IPC has been more effectively monitored to reduce the time in restraints and isolation. There is now a dedicated team of guards that work in the Assiniboia Unit where she is currently held. Her self-harming behaviour has continued. [ 20 ] It is not clear to this Court however, that this more humane treatment of Ms. Carter will persist, dependant as it seems to be on

the discretion of individuals employed in her care. There remains a correctional system which operates pursuant to legislation, regulation and commissioner’s directives which are not geared to the thoughtful and necessarily individualized treatment of those with mental health difficulties on the scale experienced by Ms. Carter. A number of the commissioner’s directives, together with governing legislation and regulations have been included in the Appendices. As the Officer of the Correctional Investigator of Canada, Dr. Mela and his treatment team have recommended; Ms.

Carter should be in a facility where a clinical approach governs, where there are sufficient resources to best respond to her mental health needs, and where she would be surrounded by health care providers who, not guards, are the first responders to a self-harming incident. [ 21 ] There are a number of striking aspects to the facts behind this application; after moving past the sheer number of incidents of assault both for sentence and on her lengthy record: i.

While the circumstances of both of the primary designated offences, the assaults with a weapon, met the criteria for conviction and for a dangerous offender application; the circumstances of these assaults place them at the low end of such offences as we typically encounter in the justice system and Ms. Carter’s circumstances demonstrate a reduced moral blameworthiness. ii. Ms. Carter’s level of functioning is such that neither she, nor anyone really familiar with her circumstances expects her to live independently or outside an institution in the foreseeable future. iii. Ms.

Carter has suffered permanent brain damage from a number of sources and most concerning and documented since 2009 at the RPC, due to head banging. She is at risk for further impairment and possibly death if it cannot be arrested or controlled. iv. There is a very sincere concern amongst all who have come to know Ms. Carter that she should, if possible, enjoy a more optimal quality of life. [ 22 ] As will be elaborated upon under XIII Sentencing Decision: i. I find that Ms. Carter is entitled to the maximum credit for the time that she has spent on remand.

The proceedings have been delayed for reasons beyond her control and the conditions under which she has been held warrant the maximum credit pursuant to s. 719(3.1) of the Criminal Code - 960 actual days x 1.5 = 1,440 days or 48 months. ii. I decline to find that Ms. Carter is a dangerous offender. I am not satisfied that the Crown has established a pattern, as required in s. 753(1) (a)(

i) or (ii) of the Criminal Code . I also decline to treat this as an application for a long-term offender designation. iii. I find that the appropriate global sentence for all of the offences before the Court is a total of 6 years, including the 48 months already served, leaving a further 2 year sentence in a federal correctional facility. Contents Page Introduction 1 I Documents Filed 9 A. Exhibit List 10 B. Assessment Order and Report of Dr. Lohrasbe 10 C. Psychiatric Reports 11 D. Psychological Reports 11 E. Medical Investigations 12 II Remote Appearance by CCTV 12

III Remand Time 13 IV Dangerous Offender Application & Sentencing Hearing 13 V Background 14 A. Record of Convictions 14 B. Significant Violent Offence Convictions 15 C. Predicate Assaults With a Weapon 20 D. Seventeen Further Predicate Assaults 23 E. Surrounding Circumstances to the 2009 and 2011 Predicate Assaults with a Weapon 26

a) June 13, 2009 Assault With a Weapon 27

b) July 17, 2011 Assault With a Weapon 30 VI Ms. Carter’s Personal Background 32 A. Gladue Report and Personal Circumstances 32 VII

Section 752.1 Dangerous Offender Assessment 35 A. Diagnostic Opinion 36 B. Risk Assessment 40 C.

Summary 42 VIII Ms. Carter’s Mental Health 42 A. Early Diagnoses 43 B. Deterioration Over Time and Borderline Intellectual Functioning 44 C. Culpability 47 D. Suicide Attempts and Self-harming Incidents 47 E. Head Banging in Custody 49 F. Progression of Head Banging and Assaults Over Time 51 IX Correctional Service Canada Response to Head Banging and Assaults 51 A. Is there a Mental Health Response to Self-harming or Assaultive Behaviour? 51 B. Administrative Segregation or Isolation under Intensive Psychiatric Care (IPC) and Restrictive Psychiatric Intervention (RPI) 54 C.

February 2011 – Incident Reports and Administrative Segregation 57 D. Consent to Treatment and Certification 60 E. Certification under The Mental Health Services Act 60 F. Cell Conditions 61 G. Effect of Isolation on Mental Health 63

H. Pinel Restraint System (PRS) 65 I. Broda Chair 66 J. Medical use of the PRS and Broda Chair 67 K. Effect of Restraints on Physical and Mental Health 68 L. Transfers and Removal of Restraints 69 M. s. 128 of the Canada Labour Code and the Institutional Emergency Response Team (IERT) 69 N. When is Use of Force Reported? 71 O. OC Spray Use 72 P. OC Spray Effect on Mental Health 73 X Treatment for Ms. Carter in Correctional Service Canada 75 A. Remand Status 75 B. Dialectical Behaviour Therapy (DBT) and Cognitive Behaviour Therapy with Dr. Sojonky 75 C.

Exploration of Alternative Medical Approaches at the RPC 80 XI Office of the Correctional Investigator 80 A. Recommended Move to a Hospital Setting 80 B. Risky Business , Report of the Office of the Correctional Investigator 84 XII Discussion of the Law Pertaining to the Issues 87 A. List of cases referred to in alphabetical order 87 B. Application of Criminal Code Sentencing principles and Gladue Factors and Alternatives 88 C. Judicial

Interpretation of the Dangerous and Long-Term Offender Provisions 89 D. Sentencing 91

a) Pursuant to s. 753(1) (a), are either/both of the s. 267(

a) offences of assault with a weapon “serious personal injury offences” pursuant to s. 752(

a) of the Code ? 91

b) Has the Crown Established a Pattern i. Pursuant to s. 753(1) (a)(

i) does the evidence establish a pattern of repetitive behaviour, of which the offence for which she has been convicted forms a part, showing a failure to restrain her behaviour and is there a likelihood of her causing death or injury to other persons, or inflicting severe psychological damage to others by failing in future to restrain her behaviour, or ii. Pursuant to s. 753(1) (a)(ii) does the evidence establish a pattern, of

persistent aggressive behaviour, of which the offence for which she has been convicted forms a part showing a substantial degree of indifference respecting the reasonably foreseeable consequences to others? 92 iii. What is Ms. Carter’s Pattern? 98

c) What is the significance to these proceedings of the presumption in s. 753(1.1)? 99

d) When the offender is not found to be a dangerous offender s. 753(5) 99 E. Charter Issues and Remedies 100

a) Declaring ss. 753(1.1) and 753(4.1) to be of no force and effect 101

b) Finding that the treatment that Ms. Carter has received while in custody at the RPC violates the Charter 102

c) Granting a stay of proceedings for the outstanding charges identified in the Agreed Statement of Facts for which guilty pleas have been entered 102

d) Granting a constitutional exemption or other remedy pursuant to s. 24(1) of the Charter , including a structural injunction. 103

e) s. 12 of the Charter – cruel and unusual treatment 104 F. Remand Credit 105 G. The Appropriate Sentence 106 XIII Sentencing Decision 108 XIX List of Appendices Attached 110 I Documents Filed [ 23 ] The Crown filed two CSC (Correctional Service Canada) Binders and two Offence Binders. The Defence filed a further Binder of documents, some of which, the Court was told, were obtained by means of an application for production of Third Party Records from Correctional Service Canada, from the Office of the Correctional Investigator, a Gladue Report and other research.

With assistance from a class of students at the College of Law, University of Saskatchewan, the Defence prepared a Chronological Index of its documents and a Time Line; both of which were very helpful. The documents were produced in written form and with the kind assistance of the Defence, electronically. A. Exhibit List Court Exhibits C-1 CV Dr. Lohrasbe

C-2 Assessment Report of Dr. Lohrasbe Crown Exhibits P-1 Offence Binder 1 of 2 P-2 Offence Binder 2 of 2 P-3 CSC Binder 1 of 2 P-4 CSC Binder 2 of 2 P-5 Agreed Statement of Facts Defence Exhibits D-1 Memory Stick with Defence Binder of Electronic Exhibits D-2 Memorandum dated May 20/09 Pine Grove to Dr. Adelugba D-3 Defence White Binder B. Assessment Order and Report of Dr. Lohrasbe [ 24 ] Following upon Ms. Carter having been found guilty of the two predicate offences of assault with a weapon, contrary to s. 267(

a) of the Code , both serious personal injury offences and primary designated offences within the definition

section of s. 752(a) [2] , Crown counsel advised the Court of the intention of bringing an application pursuant to s. 752.1(1) of the Code for an assessment. [3] [ 25 ] By order dated April 15, 2013, the Court remanded Ms. Carter for an assessment, to be undertaken by Dr. Lohrasbe and he produced a report [4] and testified at the hearing that followed. [ 26 ] Additionally, contained within the materials filed by the Crown and Defence were a number of psychiatric and psychological reports. C. Psychiatric Reports • Dr. G. Marcoux, psychiatrist, April 7, 2001 – Interim Psychiatric Assessment – CSC Binder 1 of 2, Tab 34 - Exhibit P-3 • Dr. Mansfield Mela, psychiatrist, April 17, 2003 – Discharge

Summary – CSC Binder 1 of 2, Tab 49 - Exhibit P-3 • Dr. Robin Menzies, psychiatrist, July 7, 2003 – Psychiatric Court Report – Offence Binder 2 of 2, Tab 16 - Exhibit P-2 • Dr. Mansfield Mela, psychiatrist, July 8, 2003 – Psychiatric Court Report – Offence Binder 2 of 2, Tab 16 - Exhibit P-2 • Dr. Mansfield Mela, psychiatrist, September 14, 2004 – Psychiatric Court Report – Offence Binder 2 of 2, Tab 20, beginning at page 36 - Exhibit P-2 • Dr. Mansfield Mela, psychiatrist, October 19, 2004 – Discharge

Summary – CSC Binder 1 of 2, Tab 50 - Exhibit P-3 • Dr. Olajide Adelugba, psychiatrist, March 23, 2006 – Discharge

Summary – CSC Binder 1 of 2, Tab 59 Exhibit - P-3 • RPC Duty Doctor’s Initial Assessment, June 2, 2009 – Defence Binder, Tab 2 - Exhibit D-1 • Dr. Mansfield Mela, psychiatric report, June 8, 2010 – Defence Binder, Tab 20 - Exhibit D-1 • Dr. Mansfield Mela, psychiatrist, January 19, 2011 – Psychiatric Court Report – Fitness and Criminal Responsibility – Offence Binder 2 of 2, Tab 24 • Dr. Mansfield Mela, psychiatrist, February 22, 2011 – Progress Note – Defence Binder Tab 42 - Exhibit D-1

• Dr. Olajide Adelugba, psychiatrist, May 16, 2012 – Psychiatric Court Report concerning Ms. Carter’s appearance in person or by CCTV – Offence Binder 2 of 2 Tab 25 - Exhibit P-2 D. Psychological Reports • Psychological Intake Assessment Screening Report dated July 21, 1999, CSC Binder 1 of 2, Tab 29 - Exhibit - P-3 • Psychological for Segregation, Dr. James Seager, Chief Psychology, Saskatchewan Penitentiary, April 17, 2000, CSC Binder 1 of 2, Tab 31 - Exhibit P-3 • Psychological Assessment Report, Tara Turner, Psychology Intern, Dr. L. D.

Pressé, August 9, 2000, CSC Binder 1 of 2, Tab 32 - Exhibit P-3 • Psychological Assessment for National Parole Board, Dr. L.D. Pressé, May 21, 2001, CSC Binder 1 of 2, Tab 37 - Exhibit P-3 • Psychological Report regarding DBT program, Dr. Linda Rose, September 6, 2006, CSC Binder 1 of 2, Tab 65 - Exhibit P-3 • Psychological Activity Notes, Dr.

Sojonky, Psychologist, all in CSC Binder 2 of 2 - Exhibit P-4: o July 7, 2010, Tab 110 o July 7, 2010, Tab 112 o July 14, 2010, Tab 113 o July 19, 2010, Tab 114 o July 21, 2010, Tab 115 o July 28, 2010, Tab 116 o August 19, 2010, Tab 118 o September 2, 2010, Tab 119 o November 4, 2010, Tab 127 • Psychological Assessment Report, Dr. Sojonky, Psychologist, November 5, 2010, CSC Binder 2 of 2, Tab 128 - Exhibit P-4 E.

Medical Investigations [ 27 ] There were also a number of medical investigations and reports concerning potential brain injury connected to repeated head banging, restraint over an extended period and management of her diabetes. Some of the materials are noted below. Some of the materials are handwritten doctors’ notes and difficult to decipher confidently: • December 3, 2010, RUH Emergency, Clinical Neurophysiology, CT Head and CT Facial bones and letter from Dr. Dallas Pearson of November 26, 2009 to Dr. L.

Pilot RPC – Defence Binder, Tab 5 - Exhibit D-1 • Medical Imaging Department, Royal University Hospital to RPC, December 1, 2010 and Patient Diagnostic Report concerning CT Scan performed April 6, dated April 12, 2010 – Defence Binder, Tab 6 - Exhibit D-1 • SCH Emergency, CT Head and Orbits, February 3, 2010 and January 29, 2010 Patient Diagnostic Reports - Defence Binder, Tab 9 - Exhibit D-1 • August 3, 2010 letter from Dr. Mansfield Mela, RPC Psychiatrist to Dr.

Kirk Neurology regarding neurological causes regarding the emergence of incoherence – Defence Binder, Tab 23 - Exhibit D-1 • Referral for Consultation and Report concerning need for physio due to prolonged immobilization on Pinel and restraint chair, dated June 9, 2010, page 11 of 16 - Defence Binder, Tab 23 - Exhibit D-1 II Remote appearance by CCTV

[ 28 ] Over the course of her many appearances Ms. Carter attended remotely by CCTV from the RPC as her mental health did not for allow her to attend in person. The Court requested an opinion about Ms. Carter’s ability to appear in person and received a report dated May 16, 2012 from Dr. Adelugba, psychiatrist, who advised that she was capable of appearing in person at her hearing. Her condition subsequently deteriorated and her counsel took the position that she should appear remotely by CCTV.

She was always restrained in a Broda Chair and at times her head was bandaged or evidently injured, presumably due to persistent self-injurious head- banging. During the hearing itself, she often had to be roused as she appeared to drift off to sleep. Under these conditions, the hearing proceeded without significant disruption, but from time to time, she would yell out, sometimes understandably and in context and other times nonsensically. III Remand Time [ 29 ] Ms. Carter has been on remand at the RPC since December 6, 2011, a total of 2 years, 230 days.

She has been at the RPC continuously since June 8, 2009 when a 30 month sentence was imposed. IV Dangerous Offender Application & Sentencing Hearing [ 30 ] Following convictions on the two predicate offences of assault with a weapon, contrary to s. 267(

a) of the Code : Information #44658836, a June 13, 2009 incident and Information #39985092, a July 17, 2011 incident, the prosecutor brought an application pursuant to s. 752.1(1) for assessment for an application pursuant to s. 753 or s. 753.1 and a finding that Ms. Carter is a dangerous or long-term offender. [ 31 ] Ms. Carter’s full record for significant convictions of violence is reproduced and discussed further in this decision. Her predicate offences are enumerated immediately below.

a) Two offences of assault with a weapon of which she was found guilty after trial:

i) Information #44658836, June 13, 2009, assault with a weapon, handcuffs, s. 267(

a) ii) Information #39985092, July 17, 2011, assault with a weapon, hot water, s. 267(

a) d) Ms. Carter entered guilty pleas to 17 more offences for a total of 19 charges of assault. The Crown election for each of the following was by indictment: iii) Information #44802893, June 26, 2009, assault, s. 266 iv) Information #44659235, November 5, 2009, assault, s. 266

v) Information #43986724, February 28, 2010, assault peace officer, s. 270(1)(

a) vi) Information #43266417, June 20, 2010, assault peace officer, s. 270(1)(

a) vii) Information #44330447, October 7, 2010, assault peace officer, s. 270(1)(

a) viii) Information #46420419, between February 7 and 8, 2011, assault, s. 266 ix) Information #42799178, February 11, 2011, assault, s. 266

x) Information #37290766, May 26, 2011, assault, s. 266 xi) Information #36653086, June 6, 2011, assault, s. 266 xii) Information #44303351, July 26, 2011, assault on two persons, s. 266 xiii) Information #44303524, August 8, 2011, assault peace officer, s. 270(1)(

a) xiv) Information #36654811, October 22, 2012, assault, s. 266 xv) Information #44332045, January 17, 2013, assault peace officer, s. 270(1)(

a) xvi) Information #33303772, May 12, 2013, assault, s. 266 xvii) Information #38468315, June 29, 2013, assault, s. 266

xviii) Information #44664085, July 12, 2013, assault peace officer, s. 270(1)(

a) xix) Information #44664475, August 20, 2013, assault peace officer, s. 270(1)(

a) Documents filed with the Court indicate many more assaults of a similar nature, for which no charges were laid. There has also been a great number of incidents of self-harm from head banging documented in the correctional environment beginning in 2009 and continuing. [ 32 ] Ms. Carter’s mental health was a significant consideration in this hearing. Criminal responsibility and fitness to stand trial was canvassed by Dr. Mela in relation to offences occurring on or between June 13, 2009 and October 10, 2010.

He concluded that she was not criminally responsible with respect to 3 alleged assaults on February 12 and 14, 2010, but was otherwise fit to stand trial. She was found to be criminally responsible for the predicate offence of assault with a weapon, occurring on June 13, 2009. [5] Dr. Adelugba in his May 16, 2012 report found Ms. Carter fit to stand trial. [6] V Background A. Record of Convictions [7] [ 33 ] Ms. Carter’s criminal offence history began when she was a young person and continued with little interruption until 1992.

At age 17 she was sentenced May 16, 1989 to a robbery for which she received 16 months of secure custody, later reviewed to open custody. She was in the community following a sentence in April 27, 1992 for a mischief for which she received time served and one year of probation. Her record resumed January 28, 1999 as an adult when she received a 9 month concurrent sentence for a number of nonviolent offences. It was while serving this sentence that she committed an aggravated assault upon another inmate at Pine Grove Correctional Centre.

During that federal sentence of 2 years, she was convicted of assault with a weapon and sentenced to 2 years for assault with a weapon and forcible confinement. As a result Ms. Carter was continuously in custody from January 28, 1999 to April 22, 2003. She was in and out of custody for a variety of lesser matters until her conviction and sentence on November 23, 2004 for several assaults including an assault causing bodily harm upon a stranger on the street.

Released on statutory release March 24, 2006, at some point her release was revoked and she returned and served her sentence until warrant expiry on November 22, 2006. Thereafter she remained in the community until her arrest on March 18, 2009 and remained on remand until a conviction and sentence of 30 months for two common assaults and two assaults upon peace officers on June 8, 2009. Marlene Carter has been in custody continuously since then. B. Significant Violent Offence Convictions [ 34 ] This discussion covers the circumstances of Ms.

Carter’s most significant offences of violence including the first and second predicate offences of assault with a weapon occurring in June 2009 and July 2011.

a) Young Offenders Act – April 25, 1989 robbery – sentenced May 16, 1989 to 16 months secure consecutive at age 17 [ 35 ] Ms. Carter pled guilty on her first appearance, while in custody. She was self-represented. The offence was committed while she was at large on a one year sentence for 16 property offences; 15 break and enters and 1 mischief. Four months into that sentence it was reviewed and she was placed in a community home on April 12 th and took off 3 days later. [ 36 ] The predisposition report outlines the circumstances. [8] While at large she partied. She and some others decided to do a robbery.

They visited a gas station/convenience store at 3:20 a.m., returning at 5:10 a.m. They ordered food items. As the victim placed the items outside the door, Marlene punched her in the face and she and two others pushed their way into the store. One other stood watch. Marlene “grabbed the victim’s neck and pushed her head down so she could not see them”. Pushed to the floor, she was struck six or seven times.

While the victim opened the cash register she was threatened that if she made one false move, she was dead. [ 37 ] The report refers to Marlene’s traumatic upbringing: “Marlene has an extensive history of physical, sexual and substance abuse, as well as being suicidal.” The writer expresses the view that while Ms. Carter does not express remorse, nor does she offer any excuses. [ 38 ] This sentence was reviewed on March 8, 1990 to open custody. There were five objectives during sentence: address issues of

sexuality, attend therapy, alcohol and drug abuse, surviving sexual assault, and anger control. The review report identifies self-harm: “slashing” and reports that she completed six weeks of inpatient drug and alcohol treatment, where she had done very well.

b) March 12, 1999 aggravated assault – sentenced April 23, 1999 to 2 years consecutive [ 39 ] This occurred while Ms. Carter was serving a sentence of 9 months at the Pine Grove Correctional Centre. The victim and Marlene Carter were working in the sewing room under the supervision of a staff member. Ms. Carter was cutting material with scissors. She stabbed the victim once with the scissors in the lower right side of her back. There were no internal organ injuries. Her initial remark was that she didn’t know why she did it. In a warned statement Ms.

Carter said she wanted to have a relationship with a person with whom the victim was in a relationship. Ms. Carter gave contradictory statements of both concern and lack of concern for the victim. [ 40 ] Defence counsel referred to a pre-sentence report which identifies suicide and issues of self-harm. He described Ms. Carter’s brash statements as “bravado”.

Having spoken to staff at Pine Grove, he was advised that upon admission on January 29, 1999, there were concerns around depression, suicide and self-mutilation (slashing) and he recounted a minimal institutional response to what he described as a “cry for help”. Crown counsel noted a reference in the report to “burning herself and stopped eating”. He described the assault as impulsive, random and irrational. Ms. Carter instructed her counsel to ask for a two year sentence.

c) April 6 to 7, 2000, unlawful confinement, assault with a weapon and mischief – July 12, 2000 – 2 years concurrent and consecutive [ 41 ] About a year into her previous penitentiary sentence, Ms. Carter was charged with six other inmates. On her first appearance, while self-represented, she entered guilty pleas. The Crown briefly reported that Ms. Carter took orders from three ringleaders (the court had already heard likely more extensive facts concerning co-accused that afternoon). At one point Ms. Carter hit the hostage with a chain and at another time held a glass to her throat.

She assisted in tying her hands and feet with shoelaces. She kicked at her and took turns holding the chain around her neck. She broke some windows in the unit. Ms. Carter did not want a lawyer nor did she say anything on her own behalf. Released April 22, 2003 [ 42 ] Having been in custody continuously since her January 28, 1999 sentence of 9 months to Pine Grove, and receiving two consecutive two year sentences, Ms. Carter was released at warrant expiry on April 22, 2003 to the North Battleford Hospital where she incurred a threats charge and received a 45 day sentence to Pine Grove.

After her release she was very transient, incurring short periods of incarceration. She lived in Prince Albert, Saskatoon and Edmonton with friends and relatives and on the streets and worked as a prostitute to sustain herself. While in Edmonton she was convicted of two assaults and sentenced to probation. Her next jail sentence came about with a theft conviction, for 60 days followed by probation. She was arrested as a result of failing to report to her probation officer and was in custody when these next offences occurred.

d) Between May 25, 2004 & September 20, 2004 assault x 3, assault peace officer x 3, assault causing bodily harm x 2 - Sentenced November 23, 2004 to 2 years concurrent and consecutive [ 43 ] On August 13, 2004 Ms. Carter was remanded to the RPC. The Court received a psychiatric report dated September 14, 2003 from Dr. Mansfield Mela who was familiar with her from previous admissions to the RPC. [9] He referred to her suicidal and self- harming history which did not include head banging but included hitting her nose on hard surfaces.

He reported a hanging attempt in 1998 to which he attributed subsequent hypoxic brain injury. [ 44 ] Dr. Mela indicated that Ms. Carter’s level of functioning had deteriorated over the years and he felt that her aggression had turned outward toward others, rather than herself. Dr. Mela was asked to address the issue of criminal responsibility; he diagnosed her with a: mental disorder in the form of significant anxiety resulting from possible brain disorder. She is traumatized by the intrusive images that she experiences.

This picture is complicated by personality disorder and significantly by substance use disorder, especially alcohol and solvent.

[ 45 ] The transcript reveals, as Dr. Mela described, a pattern of assaulting inmates and corrections officers. These offences occurred with little or no warning or reason. With the exception of the assault causing bodily harm, the injuries were not serious. Information #40155344 i. Count 1 – May 25, 2004 – assault on an inmate – During transport to Pine Grove, a fight ensued with an inmate. When she fell to the ground, Ms. Carter kicked her in the back. ii.

Count 2 – June 24, 2004 – assault peace officer – While assisting the inmate in the next described assault, the guard was struck in the left jaw, left temple and left side of her chest. iii. Count 3 – June 24, 2004 – assault on another inmate – For little apparent reason she began punching her over the head. She received a lump on the back of her head. Information #40004201 – two assaults on the same person iv. Count 1 and v. Count 2 – June 26, 2004 – assault peace officer and assault causing bodily harm – While being escorted she hit the officer with a closed fist.

Photos showed bruising to the face, under the left eye and to both arms. She was wearing glasses at the time. Information #40004215 – June 29, 2004 –

summary conviction proceedings vi. Assault peace officer – While being escorted in a body belt and shackles, she struck the officer twice “upside” on the head with a closed fist. Information #24205987 vii. Assault causing bodily harm – August 12, 2004 – At the Prince Albert RCMP Detachment, she punched a matron in the face, causing a cut to the right eyebrow, requiring five stitches. Her nose and eye were black. Information #24220122 viii. Assault on an inmate – September 20, 2004 – She was being escorted out of the cell and without warning swung both arms and lunged toward the matron who received a black eye.

Her counsel remarked in support of the joint submission for 2 years: There’s some question about maybe whether her problems are organic in nature. . . it doesn’t matter how much medication she’s given it doesn’t really control the problems that she’s got. The Court was sympathetic to her personal circumstances: Alcoholic parents, child abuse, domestic violence up until the age of five or six, abused by the - - by Aunt Julia after that, abused by her partner after that, And she’s unfortunately victimized over and over and over. A number of foster homes and has suicide attempts. . . So it’s very unfortunate.

e) March 18 & 19, 2009 [10] i. March 18, 2009 – assault x 2 and assault peace officer – Sentenced June 8, 2009 to 24 months for the first assault and 3 months’ time served concurrent for the remaining two offences ii. March 19, 2009 – assault peace officer – Sentenced June 8, 2009 to 6 months consecutive for a total of 30 months It would seem from the documents that Ms. Carter was released on her statutory release date for her last 2 year sentence on March 24, 2006 [11] .

However she was again in the RPC September 5, 2006 [12] and before the Court and sentenced to time served, as a serving prisoner, on October 11, 2006 [13] . Presumably, her statutory release was revoked and she returned to serve out her sentence to warrant expiry on November 22, 2006. She then remained in the community until her arrest on these offences on March 18, 2009.

i. Assault March 18, 2009 – assault The first assault on a civilian was the subject of trial. The transcript [14] reveals that the only issue was whether the incident was an assault causing bodily harm or an assault. The complainant, a stranger to Ms. Carter, was walking on the sidewalk toward her. Without warning or reason Ms. Carter kicked the complainant. She tried to get away but Ms. Carter followed her and grabbed her backpack. The complainant was swung around, lost her balance and fell on the front of her body onto the pavement. Ms.

Carter then straddled her and punched her with both fists approximately 15 times. She received some bruising around the nose, cuts on her nose and a goose egg bump on her forehead and some bruising of both her eyes. March 18, 2009 – assault Following her arrest in cells, Ms. Carter was asked to remove her sweater so that the matron could conduct a search. While removing her sweater, Ms. Carter turned toward the matron and punched her on the left side of her face. March 18, 2009 – assault peace officer In cells, the police noticed that Ms. Carter was wearing a necklace and ordered her to remove it. She refused.

As the officers approached, she punched one of them in the left shoulder. Prior to this in the 5 hours that she’d been in the cells the officers noted that she had been pacing back and forth, yelling and swearing at passersby. She mumbled to herself, went down on her knees and had fallen forward, stopping her head from hitting the ground by placing her hands in front of her at the last minute. ii. March 19, 2009 – assault During escort to the cell area of the Regina detachment provost cells, she was instructed to remove her outer clothing and shoes.

She was then instructed to stand and face the wall so that she could be searched. She started to turn away then suddenly turned and hit the officer on the left side of her jaw with a closed fist. The officer suffered a chipped tooth and sore jaw. C. Predicate Assaults With a Weapon [ 46 ] Ms. Carter was convicted after trial on each of these offences. [15] The circumstances follow.

a) June 13, 2009, assault with a weapon, to wit: handcuffs contrary to s. 267(

a) Code Information #44658836 [ 47 ] Ms. Carter had been in the Intensive Psychiatric Care (IPC) area of the Churchill Unit of the RPC for 2 days on an emergency admission as a result of self-harming behaviours. [16] Her security level was such that she was only permitted out of her cell for 1 hour for exercise and a shower. She was to remain with her hands cuffed behind her back during this time. Three corrections officers were present. [ 48 ] The assault took place in the courtyard of the Churchill Unit, where Ms. Carter was taken for exercise. Within about five minutes of her arriving there, Ms.

Carter was seen crawling on the ground, eating dirt. Officer Tokarchuk asked what she was doing. She stood up. It was pointed out to Officer Tokarchuk that Ms. Carter’s left hand was free of the handcuffs. Ms. Carter was asked if she would comply with the cuffs being reapplied and she agreed. [ 49 ] While putting her arm out to reapply the cuffs she struck out at Officer Tokarchuk with a closed fist and according to this officer may have hit her on the top of her head with the free handcuff; she could not be sure. She noted cuts on the top of her head. She could not say whether the cuffs were in Ms.

Carter’s hand or swinging free. Another officer who witnessed the incident said that he saw Ms. Carter holding the free bracelet of the handcuff in her right hand when she swung at Officer Tokarchuk and hit her in the nose area. Officer Tokarchuk suffered an injury which included bleeding from her nose, swelling and bruising and she was taken to hospital. She was subsequently referred for a septoplasty and underwent day surgery to straighten her nose. [ 50 ] In the subsequent attempt to regain control of her, Ms. Carter began to swing the handcuff toward the third officer present. OC

spray was used twice; after the first time, she continued to swing the handcuff at the officer with the OC spray. [ 51 ] During the course of the trial, after a break, the Court was advised that Ms. Carter had injured herself and a nurse had been called. [ 52 ] At trial the issue for the Defence was whether the handcuffs were deliberately used to cause injury. In rendering my decision on October 12, 2012, I held that it was immaterial in making out the Crown’s case whether the handcuffs where held in the hand or dangling from the wrist when the complainant was struck.

That distinction is more important for the purpose of sentencing. My full reasons are on the record on October 4, 2012. [17] [ 53 ] For the purpose of sentence, I have resolved the question of her intention insofar as it affects her culpability in favour of Ms. Carter. There was no planning to this assault. Immediately beforehand she was eating dirt in the courtyard. Dr.

Mela, who conducted an assessment of her fitness to plead and criminal responsibility with respect to several events, including this one, wrote in his January 2011 report [18] : The explanatory themes in this incident include; the opportune event of her hand released from the cuff, psychotic concerns about the safety of her children. Without evidence, she has held unshakably to the belief that something is wrong with the children. In addition to the seemingly bizarre behaviours including the bizarre eating of dirt and an unprovoked attack, it will appear that she was in a disturbed mental state. Ms.

Carter however said that she knew it was an attack on a person but had to do it impulsively. She felt she had to respond to her concerns about her children. These concerns have regularly been of a psychotic nature. Ms. Carter’s culpability was very low with respect to this incident.

b) July 17, 2011, assault with a weapon, to wit: hot water, contrary to s. 267(

a) Code Information #39985092 [ 54 ] At the time Ms. Carter was being kept in an isolation cell and was restrained in a Broda Chair for 23 hours a day with 1 hour for exercise and a shower. She was being allowed out of her cell in the Broda Chair for some of the day. [ 55 ] The complainant, a corrections officer, at the request of Ms. Carter, brought her some hot water to make tea. The officer poured the water from the tea kettle into a coffee cup and handed it to Ms. Carter who then threw the hot water in the cup at the officer. The officer testified that she was hit by the cup on the left side of her face.

The incident was caught on camera in the cell and based on my in-court observations of the video and assessment of the evidence; I found that Ms. Carter threw the hot water at the officer, only. The water had been boiling but had cooled somewhat as the corrections officer attended to the request of another inmate after the kettle had stopped boiling. The officer received medical attention immediately from a nurse and subsequently saw a doctor. She missed two days of work and said that she experienced discomfort for some days including blurred vision and the skin stayed red and puffy for up to 2 ½ weeks.

The event was unexpected and apparently without reason. [ 56 ] At trial the issue for the Defence was whether the cup of hot water met the definition of a weapon and specifically whether there was intention to use the cup or hot water as a weapon. The Crown asked the Court to find that the officer was struck with the cup as well as the hot water. In finding her guilty of assault with a weapon, I held that the hot water was thrown at the officer and that it was reasonably foreseeable that the water was hot. My full reasons are a matter of record, dated October 4, 2012. D. Seventeen Further Predicate Assaults [19]

a) Information #44802893 – June 26, 2009 – assault s. 266 Code [ 57 ] While taking Ms. Carter to the courtyard of the Churchill unit of the RPC for exercises, this correctional officer was struck in the right upper arm with a closed fist. There was no bruising or redness.

b) Information #44659235 – November 5, 2009 – assault s. 266 Code [ 58 ] Following the completion of a shower, Ms. Carter was secured in her cell. She was seen to be breathing deeply and when the correctional officer opened the door to see if she was okay, Ms. Carter lunged toward the officer, hitting her in the jaw area. There was no bruising.

c) Information #43986724 – February 28, 2010 – assault corrections officer s. 270(1)(

a) Code [ 59 ] While moving in to assist Ms. Carter, whom she thought was stumbling; she was kicked in the shins. She was not seriously injured.

d) Information #43266417 – June 20, 2010 – assault peace officer s. 270(1)(

a) Code [ 60 ] She was kicked in the left upper arm while assisting another officer in moving Ms. Carter from a Broda Chair to another cell. She had a bruise but it did not interfere with work.

e) Information #44330447 – October 7, 2010 – assault peace officer s. 270(1)(

a) Code [ 61 ] In the process of transferring Ms. Carter from a Broda Chair into her cell, she struck her with a free hand in the back.

f) Information #46420419 – between February 7 and 8, 2011 – assault s. 266 Code [ 62 ] Ms. Carter twice assaulted another female inmate, by punching her in the face about three times. The next day Ms. Carter walked up behind her while she was waiting for her medication, pulled her to the ground, got on top of her and began punching her repeatedly in the head and face area. She received a bloody nose from the second incident.

g) Information #42799178 – February 11, 2011 – assault s. 266 Code [ 63 ] This correctional officer was assisting Ms. Carter in the washroom. As she attempted to handcuff her to apply restraints, Ms. Carter struck her with her fist in the right bicep.

h) Information #37290766 – May 26, 2011– assault s. 266 Code [ 64 ] This was an assault on a fellow female inmate. While whispering in Ms. Carter’s ear, she was grabbed on the side of her neck, spun around and placed in a choke hold. Her back and neck were sore but no injuries were visible. She was fearful of Ms. Carter, telling of an incident earlier that month when she said Ms. Carter attempted to assault her.

i) Information #36653086 – June 6, 2011– assault s. 266 Code [ 65 ] She had been sitting across from Ms. Carter in the courtyard. She got up suddenly when Ms. Carter kicked her in the stomach. She fell to the ground. She was 2 ½ months pregnant and experienced some cramping and bleeding and received medical treatment. Ms. Carter said to her “Some people aren’t meant to have children.”

j) Information #44303351– July 26, 2011– assault s. 266 Code – two complainants [ 66 ] A staff person assisted Ms. Carter with her shower. Once she was dressed, Ms. Carter began smashing her head on the floor. She was directed to lay still and place her hands behind her head. As staff attempted to gain control of her, she began punching and wailing her fists in the air, connecting with her face numerous times, causing her glasses to break. [ 67 ] The other complainant, a correctional officer directed Ms. Carter to stop banging her head and instructed her to prone out on the shower floor.

She and several guards then entered the area to gain control of Ms. Carter. She was hit in the face with a closed fist, her head hit the shower wall and she was hit again on her forehead. OC spray was deployed. Ms. Carter continued to hit her three more times at the back of her head before they gained control.

k) Information #44303524 – August 8, 2011 – assault peace officer s. 270(1)(

a) Code [ 68 ] The case

summary merely states that the correctional officer was transferring Ms. Carter from a restraint chair to a bed and was assaulted when the right handcuff was removed.

l) Information #36654811 – October 22, 2012 – assault s. 266 Code [ 69 ] A nurse was assisting Ms. Carter to disrobe as she sat in the bath chair. While squatting in front of her, Ms. Carter screamed out and grabbed her hair with both hands, ripping out some hair. The nurse pulled back landing on her tail bone. Ms. Carter then raised her right leg in what appeared to be an attempt to kick the nurse, but this was thwarted by corrections staff. She told police, she simply doesn’t like white girls.

m) Information #44332045 – January 17, 2013 – assault peace officer s. 270(1)(

a) Code [ 70 ] The correctional officer was hit in the head twice with a closed fist. There were no observable injuries.

n) Information #33303772 – May 12, 2013 – assault s. 266 Code [ 71 ] The assault took place in the courtyard. Without provocation Ms. Carter punched another patient in the face and head area 17 times before being restrained by staff. A large goose egg and scratches were observable on the complainant’s forehead. She was also bleeding from her lip. Ms. Carter appeared to be disoriented after the assault.

o) Information #38468315 – June 29, 2013 – assault s. 266 Code [ 72 ] A nurse was changing the dressing on Ms. Carter’s wound. Two legs and an arm were restrained when Ms. Carter struck the nurse on the wrist with her free arm. She continued to swing and attempt to grab at her and other nurses as they backed away. Ms. Carter said she was having a “bad day”.

p) Information #44664085 – July 12, 2013 – assault peace officer s. 270(1)(

a) Code [ 73 ] While being escorted back from her recreational time, Ms. Carter punched a correctional officer on the arm. There was a small red mark. She was taken to the ground and placed in restraints.

q) Information #44664475 – August 20, 2013 – assault peace officer s. 270(1)(

a) Code [ 74 ] This assault occurred while Ms. Carter was being transferred from her Broda Chair to her isolation cell. While an officer attempted to place cuffs on Ms. Carter she tried to swing her arms away and towards other officers who were removing restraints. She kicked the lower part of an officer’s chest as a leg restraint was removed. Other officers came to assist and Ms. Carter was then placed in the isolation cell using 5 point restraints. E. Surrounding Circumstances to the 2009 and 2011 Predicate Assaults with a Weapon [ 75 ] Ms. Carter has been in custody continuously since March 2009.

This includes remand time at Pine Grove from March 18, 2009 until her sentence and transfer to the RPC in June 2009. She remained at the RPC as a serving prisoner until December 6, 2011 and on remand to the present. The time in custody first at Pine Grove and then at the RPC has been a very difficult for Ms. Carter and RPC staff. These years are also the most documented, at least until the summer of 2013 with respect to the Crown’s documents and a somewhat earlier date for Defence documents.

The timing of the trials, assessment order, Defence application for production of documents in the hands of Correctional Service Canada, as well as Ms. Carter’s health, dictated the extent of the documentation filed. [ 76 ] It has been important to look at the events, particularly in the time frame when the outstanding offences occurred, notably the assaults with a weapon on June 13, 2009 and July 17, 2011 with a view to addressing the many issues presented by counsel in these proceedings.

a) June 13, 2009 Assault with a Weapon [ 77 ] Noted above, Ms. Carter had just been sentenced on June 8, 2009 in Regina for offences committed March 18 and 19, 2009 to 30 months’ incarceration. On June 11, 2009 Ms. Carter was officially transferred to federal custody at the RPC to begin this 30 month sentence. [ 78 ] Ms. Carter had been in the Intensive Psychiatric Care (IPC) area of the Churchill Unit of the RPC for 2 days when this assault occurred.

She was allowed one hour a day outside her cell for exercise and a shower. [ 79 ] The Defence Binder [20] includes Pine Grove records which begin in the spring of 2009, reproduced in part to give an indication of her mental state: Log Detail Report March 25, 2009 . . . admitted on 20-Mar-09 and placed in MSU [21] . . . Carter has been displaying behaviours of a bizarre nature such as repetitive praying, picking at herself and the air, rocking in a fetal position and voiding on the floor. . .

Carter was escorted to the Victoria Hospital Emergency Department on the 23-Mar-09 where she was assessed by the on call psychiatrist and given medication through an injection. . . Carter was sent today to the Victoria Hospital Emergency Department where she was again assessed and returned, as she promised the psychiatrist that she would eat, drink and take her medications. . . [ 80 ] The remaining reports in March and up to April 28, 2009 indicate that Ms. Carter was kept in MSU on 23 Hour Lockup and Red Card Status; however there were small modifications over time.

At times there were problems with taking medications and proper eating. There was some improvement in April with RED CARD status continuing but 23 hour lockup having apparently been lifted and the reports contain numerous references to Marlene’s positive and cooperative manner and participation in unspecified MSU programming. An MSU Placement/Release Authorization signed by the Director with the following note suggests very little time outside the cell and little interpersonal contact: [22] 2009-04-23 MSU on restrictions as outlined in memo regarding Marlene as per DDO office April 16, 2009.

Marlene to remain on RED CARD status. Marlene to return to regular meals with FORK only. Baths will be facilitated on a daily basis. These will be staff no contact. Marlene will be allowed an extra 10 minutes corridor freedom if time permits. Outside exercise will be written by ADD Jackson and will be implemented on April 27, 2009.

[ 81 ] The report for April 28, 2009 depicts behaviour which appears to have been a precursor to active head banging of the kind later described. On April 28th she is still breaking her fall from a kneeling position. On this date, she refused to “re-lock”, I believe meaning her handcuffs. She was disciplined and on April 30th received ten days of MSU. On a modified plan, she was not offered programming which may appear to include not being offered a bath or outside exercise: [23] Log Detail Report April 28, 2009 . . . Throughout the day today writer did notice Marlene was a little bit “off”.

She was pacing in her cell and she would get on her knees and put her hands behind her head and interlock her fingers then she would fall forward, putting out her hands at the last minute and breaking her fall. [ 82 ] Ms. Carter was apparently taken to the Victoria Hospital on or about May 1, 2009 but no details were provided. Ms. Carter’s behaviour deteriorated beginning on May 3rd and continuing over several days her behaviour became bizarre. She resumed 23 Hour Lockup status. The exchange with Ms.

Carter on May 5, 2009 suggests a connection between misbehaviour and a wish to feel pain: [24] Log Detail Report May 5, 2009 Marlene stated “You know when you come in and spray me with that shit”. . . “No I want you guys to come in and hurt me; I want to feel the pain”. . . [ 83 ] Ms. Carter was again admitted to the Psychiatric Unit of Victoria Hospital on May 6, 2014. She was described as shouting and swearing to an unknown person with the impression that she was hearing voices. She returned to Pine Grove May 11th. There was another report of bizarre behaviour on May 13, 2009. Ms.

Carter was apparently taken to the Prince Albert Hospital on May 16th and seems to have returned on May 19th but there was no further information about the length of her stay there. There continued to be reports in May that describe bizarre and unpredictable behaviour, being uncompliant with medication but only for a short time. She expressed frustration with lack of shower and exercise time. [25] A May 12, 2009 memo from the ADD Office of Pine Grove indicated that she was to be offered exercise and bath daily, depending on her behaviours. [ 84 ] Ms.

Carter was seen while on remand for an initial assessment by the duty doctor at the RPC on or about June 2, 2009. [26] It is handwritten and hard to decipher all of it, but indicates the following: Reason for Admission − Admitted today from Pine Grove. . . . − Self-harm behaviours – banging etc. − Poor compliance with meds − Inappropriate behaviour − Washing hair in toilet . . . Mental State Examination In IPC gown . . . cooperative, appropriate – acknowledges having worked with me in the past. Seems happy to be in RPC. Says she wants to be appropriate and work with staff. No hallucinations/delusions. . .

Seems insightful . . . She was asked to and apparently signed an agreement to cooperate with treatment. [27] [ 85 ] Dr. Mela interviewed Ms. Carter about this incident pursuant to a Court ordered assessment concerning fitness to plead and criminal responsibility. He had this to say about the June 13, 2009 assault with a weapon: [28] The explanatory themes in this incident include; the opportune event of her hand released from the cuff, psychotic concerns about the safety of her children. Without evidence, she has held unshakably to the belief that something is wrong with the children. In addition to

the seemingly bizarre behaviour including the bizarre eating of dirt and an unprovoked attack, it will appear that she was in a disturbed mental state. Ms. Carter however said she knew it was an attack on a person but had to do it impulsively. She felt she had to respond to her concerns about her children. These concerns have regularly been of a psychotic nature. He discussed this incident again when giving his opinion regarding criminal responsibility: [29] It is therefore my opinion, of a reasonable medical certainty that on this assault, although Ms.

Carter was experiencing a distorted mental state, she did not lack the requisite mental awareness that she was doing something wrong and that what she was doing was assaulting an officer.

b) July 17, 2011 Assault With a Weapon [ 86 ] This offence also occurred while Ms. Carter was serving her 30 month sentence at the RPC. She was also charged later that month with assault on two RPC staff that she assaulted during a self-harming incident in the shower. [30] There are many incidents of self-harm, some assaults and numerous “Use of Force” memos both before and after the assault on July 17, 2011.

Of particular interest are entries contained in a CRIMP [31] report dated August 31, 2011, which includes a recording of head banging incidents both in the shower and the courtyard on the date of the assault, July 17, 2011. [32] The Defence Time Line, filed with the Court, notes many head banging incidents, some assaults, two of which did not take place during a head banging incident, all in July 2011 as follows (All of the sources are August 31, 2011 CRIMP – CSC Binder 2 of 2, Tab 172, unless otherwise noted): [33] July 3 - banged her head after exercise - placed in Broda [34] July 4 - banged her head after shower on way to Broda July 7 - banged her head during exercise - placed in Broda July 9 - banged her head after shower - placed in Broda July 12 - tried to bang her head during exercise – placed in Broda [35] July 15 - banged her head after shower - placed in Broda July 16 - attempted to bang her head during exercise and on way to Broda July 17 - banged her head in shower and during exercise – placed in Broda July 17 - threw hot water at nurse – assault with a weapon charge July 19 - banged her head in shower – OC spray deployed, cuffed and placed in Broda July 20 - banged her head in shower – placed in Broda July 21 - banged her head in shower – placed in Broda July 22 - banged her head in shower – placed in Broda July 23 - banged her head in shower – placed in Broda July 25 - banged her head in shower – placed in Broda July 25 - attempted to hit nurse - Incident Report – no charge - CSC Binder 2 of 2, Tab 163 July 26 - banged her head in shower - stopped by 3 officers - assaulted them – OC spray used -Pinel 4 points restraint – no charges [36] July 26 - banged her head in shower - obeyed orders to stop, lie on the floor and put her hands behind her back - handcuffed her hands in front - one guard let go of her arm and she hit one then another guard - OC spray used - showered with clothes on as male guards - put in

Pinel restraints in her cell - Cut her clothes off with scissors while nurse maintained dignity - (see A. Raaymakers and M.

Niebrugge Officer Statements) Defence Binder, Tab 51 – OCI - Incident Report Charged: Information #44303351, July 26, 2011, assault on two persons, s. 266 July 27 - FSWERT deployed to remove restraints and take her to exercise - put in leg irons and handcuffs - put helmet on her - team watched her exercise for 21 minutes - took her back to cell - 5 point restraint - compliant entire time - Defence Binder, Tab 52 OCI - Incident Report July 28 - Planned use of force FSWERT - In handcuffs and leg irons - shower under construction - head gear - exercise - return to cell placed in 5 point restraints on Pinel without incident - Defence Binder, Tab 53- OCI - Incident Report July 29 - Tried to strike nurse giving meds - FSWERT to be used for shower and exercise July 28 and 29, 30, 31 and Aug 1- will be in Pinel restraints entire time - She is certified - IPC 30 minute observation – Defence Binder, Tab 36 - July 29, 2011 Multiple Harm Update (51 pages from beginning of scan) July 29 - FSWERT used to take Marlene off Pinel restraints as she attempted to hit nurse the day before - segregation in cell E20 - took her to exercise and back - CSC Binder 2 of 2, Tab 166 - Incident Report [ 87 ] Ms.

Carter was certified under The Mental Health Services Act , in May 2011 [37] and again as of July 29, 2011. [38] Precise dates for these certifications are not known as the certificates were not filed with the Court; rather reliance has been placed on the reports filed by RPC staff. Ms. Carter was not interviewed by a psychiatrist in relation to this incident. VI Ms. Carter’s Personal Background A. Gladue Report and Personal Circumstances [ 88 ] The Court received a Gladue Report, prepared by Ms.

Laura Matthews. [39] This report, together with other documents [40] contributed to the background information about Ms. Carter’s childhood, adolescence and early adult years. Ms. Matthews wrote that Ms. Carter’s “life experiences and outcomes are likely related to the intergenerational trauma associated with colonialism in Canada.” [ 89 ] Ms. Carter is a member of the Onion Lake First Nation. She spent much of her youth in the Saulteaux Cree territory in the care of her late father [41] , Tony Swimmer, a member of the Saulteaux First Nation, and stepmother, Annabelle Knight.

Both the Onion Lake and Saulteaux First Nation communities were profoundly affected by the Indian residential school legacy. There were two residential schools at Onion Lake and an Indian Day school at Saulteaux. Ms. Matthews quoted an Onion Lake Elder who spoke of the effect of residential schools on a community: Drop a pebble in the water and it’s a ripple effect . . . it wasn’t just those that attended [residential school] who endured the harms, but generations to come.” [42] [ 90 ] Marlene Carter’s biological mother left her at the hospital; she called her father to pick her up. Ms.

Carter regards Annabelle Knight as her mother and she has been a consistent part of her life since she was three days old. Ms. Carter’s mother spent a considerable time in a residential school. Ms. Carter’s mother was born into a dysfunctional home and lived in 13 different foster homes. [ 91 ] Ms. Carter lived with her father and Annabelle Knight for the first six years of her life. Ms. Carter and Annabelle reported that Tony Swimmer beat Annabelle “all the time”. Tony and Annabelle were both alcoholics. Annabelle said she was beaten up by Tony every weekend. She fled when Marlene was eight.

Tony Swimmer was “imprisoned for abuse of Annabelle Knight in 1977.” [43] [ 92 ] Marlene had earlier gone to live with Annabelle’s aunt, Julia Knight (she also attended residential school) with whom she

stayed from age seven to twelve. There she endured emotional and physical abuse and was said to have been sexually abused by three of her great uncles. Her older sister, Peggy told Ms. Matthews that “Marlene was passed around to drunk old men to perform sexual acts.” [ 93 ] In 1983, Marlene’s father removed her from Julia Knight’s home. In February 1984, she came to the attention of the Department of Social Services following a serious suicide attempt. She shot herself in the chest in response to her father’s sexual abuse. Ms. Carter reported to Dr.

Lohrasbe: [44] . . . she shot herself in the chest with her father's 22 rifle. She stated simply that, "My dad was sexually abusing me and I couldn't stand it". Looking back on the incident, she regrets that she did not shoot "slightly to the left" as she later learned that she just missed her heart. [ 94 ] Over the next two years Ms. Carter lived with her father, her step-mother and in group homes, until she was placed at Ranch Ehrlo by the Department of Indian Affairs in 1986.

At Ranch Ehrlo a number of issues were identified: [45] Family relationships, an inability to trust adults, a troubled sexual and self-identity related to the sexual abuse and lack of problem- solving skills. Marlene tended to cope with her problems and pain by self-mutilating, running away and withdrawing.

Abuse of alcohol was an additional concern. [ 95 ] Annabelle Knight recalled that as an adolescent, Marlene Carter struggled with gender issues and she attributed this to the sexual abuse she suffered. [ 96 ] Marlene told the author of the Gladue Report, that she attained grade 10, last attending Mount Royal High School in Saskatoon. A youth pre-disposition report indicates she attained most of her grade 9 at Bedford Road School in Saskatoon. [46] [ 97 ] Ms. Matthews wrote that it has been suspected that Ms.

Carter has fetal alcohol spectrum disorder because of the rampant alcohol abuse on both sides of her parents’ families but no medical history is available to confirm maternal drinking when her mother was pregnant with her. Ms. Carter’s mother died of cirrhosis of the liver as a result of her addiction to alcohol. [ 98 ] Ms. Carter abused substances from an early age. One of her earliest was of “syphoning gas” when she was five and losing consciousness as a result. Her lifestyle included chronic substance abuse of alcohol, illicit and prescribed drugs.

Many of her criminal convictions are linked to alcohol abuse. [ 99 ] Ms. Carter married Lawrence Guiboche who was almost 30 years her senior. [47] They had three children together. She remained in the relationship until the oldest child was five years old. She was in and out of the lives of her children and recalled being impatient with them, stating: “if the boys got in the way . . . I would hit them”. There was some suggestion by one of Ms. Carter’s sisters, Peggy, that the boys may have experienced sexual abuse as they exhibited inappropriate sexual behaviours.

The boys were removed by Child Welfare for a time but eventually returned to the care of Mr. Guiboche. Ms. Carter’s contact with her sons has been very limited for some time. The children are now in their late teens or early 20’s and on their own and Mr. Guiboche is deceased. [ 100 ] The Report of the Office of the Correctional Investigator: Risky Business, comments upon the proportion of self-injury incidents that involved Aboriginal women [48] . Aboriginal women accounted for nearly 45% of all self-injury incidents involving the federally sentenced women offender population.

Of the 264 federal offenders who self-injured in 2012–13, seventeen individuals engaged in chronic (or repetitive) self-injurious behaviour (i.e., 10 or more incidents). These 17 individuals accounted for 40% of all recorded incidents. Nine were of Aboriginal descent. Nine were women (6 of whom were Aboriginal offenders). [101] The report, significantly found with respect to the treatment of Aboriginal women: 93. There is a lack of culturally safe or appropriate responses to the problem of self-injurious behaviour among Aboriginal women.

There is little evidence to suggest that staff are aware, much less apply, a Gladue lens to the management of Aboriginal women who self-injure.

VII

Section 752.1 Dangerous Offender Assessment [102] Dr. Lohrasbe’s report focused on issues related to risk, treatability and risk management. His testimony was helpful to the Court and his evidence was compelling in many respects. [103] Dr. Lohrasbe interviewed Ms. Carter on May 9, 2013 for 2 ½ hours. Informal comments to him from staff at the RPC were consistent: [49] Ms. Carter has been doing much better in recent months. . .Her aggression towards self or others has substantially declined. . .

Her current medication regime was seen as a remarkable success. . . her current medication regime was seen as remarkable. . . Several of the staff members . . . have known Ms. Carter for many years. They mentioned that she has regressed on several occasions in the past following a lengthy period of improvement in mood and behaviour. They also expressed concern over the fact that her head banging continues, although much reduced in frequency and severity. [104] Ms. Carter was placed in Administrative Segregation and Restrictive Psychiatric Intervention (RPI) three days after seeing Dr.

Lohrasbe on May 12, 2013. [50] This is an indication of, among other things, just how changeable and unpredictable Ms. Carter can be. The Fifth Working Day Review document represents the total of the information provided to the Court regarding her mental health in relation to that incident. She was seen by Dr. Baziany who ordered the RPI but he was not a witness. [105] Dr. Lohrasbe addressed Ms. Carter’s history, noting that due to her memory deficits, he regarded her as an unreliable historian for some things.

He noted her distress when she described her father’s abuse of her. [106] She described some of her suicide attempts and discussed with him her head banging and he noted a strong symbolic religious theme to her accounts, tying these events as she did to be undertaken to protect her son Dallas. He observed that the ritualistic aspects of her head banging were of great significance. She was morose when discussing her children, expressing guilt about not protecting her son Dallas from abuse; however she was unable to articulate how she knew that he had been abused.

She recounted head banging in 2007 and 2008 when she lived in the community crime free. The method differed from that described during her time in custody since 2009; she described banging her head against toilets or washbasins in public washrooms. [107] She was unable to articulate the motivations for assaulting staff, but expressed feeling better of late because she had not been assaulting staff for some time. [108] Dr.

Lohrasbe initially remarked upon: • her propensity for perseveration, • a disconnection between acts of violence and appreciation of their potential impact on herself and others (she does not experience violence and bodily harm, emotionally and cognitively, the way that most people do), • her rationale for head banging, to help protect her son, and her pre-occupation with her eldest son, to the exclusion of her other two boys. A. Diagnostic Opinion [109] Dr. Lohrasbe remarked that the ferocity of Ms. Carter’s head banging is remarkable and the persistence and intensity of her attacks on staff is unusual.

He regarded her case as unique, stating that neither clinical experience nor scientific literature is suffused with cases such as this. He was cautious about his opinion, stating: Unique cases present unique assessment challenges and the opinions that follow necessarily come with the caution that they are tentative. I offer them without the degree of confidence that accompanies more routine assessments.

[110] He reviewed Dr. Mela’s diagnosis in the January 2011 report and while expressing no disagreement, chose to reconceptualise the relevant psychiatric disorders, stating that Ms. Carter’s current multi-faceted psychiatric disorders can best be conceptualized as “Organic Brain Disorder”; adding that her current symptoms and behaviours are best seen as manifestations of brain damage. [111] He went on then to explain that damage caused by inhaling toxic substances, cutting off oxygen supply to the brain or repeated concussions is based on the clinical rather than laboratory findings. [51] Dr.

Lohrasbe explained the research regarding the impact of such brain damage upon impulse control: [52] One of the most consistent clinical outcomes from brain damage is impairment in impulse control . While there can be many sources of impulsivity, of relevance in this case is the neuro-physiological conceptualization of impulsive actions.

Research on the sequence of brain activity, awareness of a cognition, and subsequent action (pioneered by physiologist Benjamin Libet in the 1970's and 1980's), demonstrated that unconscious brain activity precedes conscious awareness of the relevant mental event (thought, urge, desire, emotion). It is that awareness that allows the interruption between the mental event and action, including speech . Libel's findings have since been replicated and are now widely accepted, although the implication on the free will - determinism debate remains a source of controversy.

The clinical relevance has to do with the nature of self-control and, in the context of forensic psychiatry, the control of aggressive thoughts and urges in particular. While aggressive thoughts and urges are common to us all, what distinguishes individuals who are recurrently violent is the failure to restrain or halt those mental experiences before they transform into actions.

In 'normal' people, aggressive thoughts or urges (and other potentially socially disruptive mental events, such as sexual impulses) are interrupted and restrained prior to being enacted through words or action. (In philosophical circles, some claim that Libel's findings have demonstrated that 'what we may have is free won't, not free will'). It is this capacity to restrain that is impaired or undermined by various forms of mental disorder, and especially those that result from any form of brain injury. Mental events translate to action without the option for restraint that exist in people not so damaged.

In clinical terms, they are impulsive, often extremely so. [112] In testimony, Dr. Lohrasbe described it as an impaired ability to control impulses and he gave a practical illustration of Ms. Carter’s difficulty: [53] Q Okay. So I think you said that we might become aware of an urge to do something inappropriate and that awareness allows us to interrupt the . . . mental event from becoming an action; is that right? . . . A Correct, or a word. Q Or a word, . . . and you said that, like, aggressive thoughts or urges are common to all of us.

It’s – it’s what we’re dealing with is – the degree of being able to control it; is that correct? A Correct, interrupt it. Q And you said what distinguishes. . .the people who are recurrently violent is the failure to restrain or halt those mental experiences before they become a

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