Her Majesty the Queen - v. -, 2016 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 038 Date: March 23, 2016 Information: 36240568, 36240569 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Justin Lee Piapot Appearing: Christopher D. White For the Crown Carson Demmans For the Accused Judgment on Long-Term Offender Application K.A. Lang , J

I) Introduction [ 1 ] On November 26, 2014, I found Justin Lee Piapot guilty of the following offences: 1. Common assault on Raylene Ireland-Straite, committed on or about February 21, 2014, at or near Regina, Saskatchewan, contrary to

section 265 of the Criminal Code, RSC 1985, c C-46;

2. In order to evade police, failed to stop his motor vehicle, committed on or about March 11, 2014, at or near Regina, contrary to

section 249.1 of the Criminal Code ; 3. Operation of a motor vehicle in a manner dangerous to the public, committed on or about March 11, 2014, at or near Regina, contrary to section 249(1) (

a) of the Criminal Code ; 4. Assault with a weapon, a motor vehicle, on Raylene Ireland-Straite, Daneen Whitequill and Zayden Whitequill, committed on or about March 11, 2014, at or near Regina, contrary to

section 267 (

a) of the Criminal Code . [ 2 ] The conviction on the assault with a weapon charge (the “predicate offence”) led the Crown to bring an application to remand Mr. Piapot for the purpose of an assessment respecting a potential dangerous offender or long-term offender designation (section 752.1). [ 3 ] The undisputed psychiatric expert, Dr. Todd Tomita, assessed Mr. Piapot and filed his report, dated May 31, 2015, with the court. Once the report was made available to the parties, the Crown advised the Court of its intention to seek a long-term offender designation for Mr. Piapot pursuant to

section 753.1. [ 4 ] The matter was subsequently set for a hearing. I heard, among other witnesses, viva voce evidence from Dr. Tomita, who was qualified as an expert forensic psychiatrist in the areas of treatability of violent offenders and risk management. Dr. Tomita was accepted by both Crown and Defence as a qualified expert. [ 5 ] The purpose of a long-term offender designation is two-fold: to protect the public as well as to rehabilitate offenders and reintegrate them into the community through the imposition of long-term supervision orders (LTSO).

Rehabilitation is the key feature of the long-term offender designation that distinguishes it from the dangerous offender regime (see R v Ipelee, 2012 SCC 13 at para 50 , [2012] 1 SCR 433, R c M.(L.), 2008 SCC 31 at para 42 , [2008] 2 SCR 163). [ 6 ] Based on the evidence, and in particular Dr. Tomita’s expert testimony, I designate Mr. Piapot as a long-term offender. I am satisfied that the risk to public safety emanating from him will eventually be controllable in the community.

However, to achieve this objective, it is necessary to incarcerate him for a period of time, followed by a long-term supervision order, to make sure that he receives the treatment and rehabilitation necessary to ensure the protection of the public. II) Facts [ 7 ] Mr. Piapot was born on June 23, 1988 which makes him presently only 27 years of age. He has had a very troubled youth. Until he was about 7 years old, he grew up on the Piapot First Nation Reserve. His parents neglected him and his siblings. His parents relationship consisted of drinking, fighting and arguing. Mr.

Piapot and his siblings were left to look after themselves. Sometimes they had food, at other times not. [ 8 ] Family services eventually intervened and placed Mr. Piapot in as many as 16 different foster homes between the ages of 8 and 12. In some of those foster homes he experienced emotional, physical and sexual abuse. [ 9 ] When Mr. Piapot was 11 years old he witnessed, while on the run from his latest foster home and staying at his dad’s house, his father’s murder (Dr. Tomita’s report, at paras 49 to 52). The murder resulted from a vicious beating perpetrated on Mr.

Piapot’s father by a drug addict using the leg of a table as his weapon. Quite understandably Mr. Piapot advised that this was a very traumatic incident for him. He suffered from nightmares for years following and his drug and alcohol consumption escalated from that point forward.

[ 10 ] Mr. Piapot began drinking alcohol when he was 11 or 12 years old, having regular alcoholic blackouts. He also became a cannabis user at that age. He often times turned to crime to fuel his addictions. When he reached the age of 17, he started to consume cocaine and morphine. He soon became a daily drug user (Dr. Tomita’s report, at paras 85 to 94). [ 11 ] Dr. Tomita diagnosed Mr. Piapot with several psychiatric conditions, including antisocial personality disorder, alcohol use disorder, substance use disorders (morphine, cocaine, cannabis, and benzodiazepines) (at para 18).

These disorders have been at the root of his criminal lifestyle. [ 12 ] From early on in his youth, Mr. Piapot has been involved with the criminal justice system. His extensive criminal record includes 36 prior convictions. Four of those convictions relate to violent offences: assault with a weapon (2002), robbery (2003 and 2007), and uttering threats (2005). He has been in custody for a very significant portion of his life since age 12. Mr. Piapot has shown a high vulnerability to negative peer influence which was a major gateway to substance abuse and criminal activity (see Dr.

Tomita’s expert report, at para 198). [ 13 ] On February 21, 2014, Mr. Piapot assaulted his ex-girlfriend Raylene Ireland-Staite, by throwing her to the ground in the course of a dispute. In contrast to this assault, the offences committed on March 11, 2014, which included the predicate offence, are much more serious. They involved again Ms. Ireland-Staite and further Daneen Whitequill and her son Zayden, a child.

In the late evening of March 10 and early morning of March 11, 2014, the victims were driving in the city of Regina looking for cough medicine and milk for Zayden when they encountered the accused in his vehicle. As the vehicles passed one another the accused noticed the victims’ car, turned around and began to pursue it. Ms. Ireland-Staite tried to speed her car away from Mr. Piapot’s vehicle but he continued the chase with the cars reaching speeds in the range of 80 to 110 kilometers per hour, within city limits and on icy streets. The pursuit lasted over the course of several blocks and at one point Mr.

Piapot brought his vehicle within six inches of the victims’ car. On one occasion, Mr. Piapot attempted to drive into their vehicle but missed it. The pursuit ended when Ms. Ireland- Staite drove by a location where police were present. She pulled over to seek refuge. At this time, Mr. Piapot again nearly struck Ms. Ireland-Straite’s car before leaving the scene, now being pursued by the police. During the chase by the police, Mr. Piapot sped up to 100 kilometers per hour and during this time he sped through a four-way stop and a school zone.

He also drove his vehicle through a red light, nearly striking a pedestrian. All of this occurred within the city limits. Due to public safety concerns, the police eventually ceased the pursuit (for the circumstances of these offences see Document Binder #1, tab #4, Provincial Court Decision, November 25, 2014, at pages 15 ff.). III) Issues [ 14 ] There are three issues in this case: 1. Have the conditions for a long-term offender (LTO) declaration pursuant to

section 753.1 of the Criminal Code been met? 2. If yes, then what is the appropriate sentence under the LTO provisions of the Criminal Code for the predicate offence of assault with a weapon (the motor vehicle), and what is the appropriate period of long-term supervision? If not, then this matter turns into purely a sentencing on the predicate offence without regard to the LTO provisions. 3. What is the appropriate sentence for the remaining offences subject to these sentencing proceedings, i.e. the common assault, the dangerous driving and the flight from the police? IV) Analysis 1. The Long-Term Offender Designation Requirements

[ 15 ]

Section 753.1 of the Criminal Code , sets out the conditions for a long-term offender designation: 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.

(1) Would it be appropriate to impose a sentence of imprisonment of two years or more for the predicate offence. [ 16 ] The Crown is seeking a sentence of more than two years while the Defence submits a sentence of less than two years is appropriate. [ 17 ] The following sentencing decisions relating to assault with a weapon convictions provide useful guidance for determining whether a sentence of more than two years is an appropriate sentence for Mr.

Piapot on the predicate offence: • Payne, D.M., 2007 SKCA (SentDig) 8: 48 months imprisonment on appeal: The accused was informed that one of the victims had "jumped" his friend. So the accused and two of his friends went to the home of the victim and walked in the back door. The accused asked the residents if they knew who had jumped his friend. He began to wrestle with one of the people in the house. They both fell to the floor. Then the accused hit another man in the shoulder with the dull side of a machete he had brought with him.

Then he entered the bedroom of the man who had jumped his friend and asked why he did it. The man's girlfriend called the police and the accused was apprehended for this home invasion upon their arrival.

The accused had a lengthy criminal record including 4 convictions for violent offences (2 dangerous driving causing bodily harm, 1 aggravated assault and 1 assault). (It is noteworthy that there were several victims in this case.) • Hansen, G.R., 2015 SKCA (SentDig) 13: Consecutive sentences imposed for two assaults with a weapon convictions totalling 32 months imprisonment: The complainant was a taxi driver in Prince Albert. He picked up the accused and a female companion. The accused was smoking in the cab. The driver asked him to put it out.

When the accused refused to do so, the driver reached over and took the cigarette away. When they reached their destination, the accused started to punch the driver. He punched the driver 20 to 30 times. He was holding a glass bottle in his hand and used it to strike the driver on the side of his head. The driver called his dispatch to state that he was being assaulted. Three or four other cabs quickly arrived on the scene, and the drivers worked together to restrain the accused until the police arrived. When police arrived, they found that the accused was intoxicated.

He was taken to the police station, and acted belligerently the entire way there. Photographs show that the victim's face was bloody and bruised. His nose, face, and lips were swollen. He had fresh blood on his clothing. The accused had a long record. He was found guilty after trial. The Court of Appeal upheld the sentence. (Again it is noteworthy that there were several victims or people at risk of injury as part of this incident). • R v LaChance, 2009 SKCA 21 , 320 Sask R 264 : 26 months imprisonment: The accused was at home in his apartment when a loud commotion erupted in the hallway.

The woman looking after the apartment building, the victim in this case, had confronted two men who had squatted in a vacant apartment. A shouting match ensued. That drew a number of tenants into the hallway, including a friend of the accused, who somehow became involved and was apparently threatened with eviction. During the commotion the accused's friend banged open the door to the accused's apartment, striking the accused in the process.

The accused then grabbed a steak knife and bolted into the hallway, where he grabbed the victim by the throat, pushed her against the wall, and swept the knife down beside her. The victim's daughter was nearby and intervened. She pushed between her mother and the accused, and as she did so he tried to bite her arm. At that time, the victim's husband appeared, grabbed the accused by the hair,

and managed to pull him away. In the meantime someone had called 911, and before long the fracas was over. The victim, her husband, and their daughter did not sustain any lasting injuries but were profoundly shaken by what had occurred. Among other things, they feared the accused would return in time and exact revenge. At sentencing, the accused apologized to the victims and stated that nobody was coming after them in retribution. The accused did not have an overly long record, but 6 previous convictions for violent offences.

The accused’s appeal was dismissed respective the assault with a weapon conviction. (Interestingly at paragraph 9 of the courts written reasons it had this to say about the accused: “In the light of these reports, coupled with what he told us, he appears to have gained a considerable measure of insight into his past behaviour and to be making a concerted effort at self-reform. This is to his credit. So is the attitude he displayed at his sentencing hearing, which looking at the matter in retrospect seems to have been quite genuine.

It might also be noted that his record of previous assaults, while significant, appears in the main to have been incurred as a result of comparatively minor common assaults.” Presumably therefore, but for these circumstances existing, a longer sentence would have been imposed). • R v Bluehorn, 2009 SKCA 45 , 324 Sask R 308 : 2 years less a day on appeal: The accused, the victim (his girlfriend) and two friends were partying and drinking in the accused’s home. The two friends then went to sleep. While the victim was in the bathroom, the accused kicked open the bathroom door and held a gun to the victim’s head.

He threatened to kill her and began punching and kicking her. He dragged the victim to the front door and threw her down the stairs. The victim ran away from the house, and the accused got in his car and found the victim on the road. After she refused to get in the car, the accused got out and told her to get in or he would beat her up again. The victim refused and the accused punched her. The victim started walking towards the accused’s residence, and he followed her in the car. Once in the residence, the victim was able to hit the accused in the head with her fists and run away.

Once again, the accused got in his car and began looking for the victim. The victim ran through a field and hid in the trees. She was then able to walk to another residence and call police. The victim was not seriously injured; she sustained a minor injury to her eye, scratches on her legs and knees and abrasions on her arms. The accused had a criminal record of approximately 38 convictions, including 4 for violent offences (dangerous driving causing death, impaired driving causing bodily harm, impaired driving causing death, and one assault).

The court of appeal overturned the trial judge’s sentence of 13 months. (It should be noted that in this case there was only one victim. In addition, the accused, to his credit, entered an early guilty plea, negating the need for a trial which would have added extra stress on the victim by having to testify). • Jimmy, L.A., 2008 SKCA (SentDig) 31: 20 months imprisonment The accused assaulted his wife and his daughter in a fit of anger. He attacked his wife first and then attacked his daughter when she attempted to intervene.

He used a stick that was a piece of a crib to whip them. (It is unclear if the stick was made of plastic or metal.) Photographic evidence and medical testimony indicate very serious injuries, including whip marks on the thighs. His wife suffered many punches and kicks to the head, he banged her head on the floor and pulled her hair. The daughter suffered a broken elbow from having her arm twisted by her father. Alcohol played a role in the offence. The accused had quite a long record, including one previous conviction for assault with a weapon.

The accused’s appeal was dismissed. (No written reasons were provided in this case so it was difficult to gain a full understanding of all of the circumstances). • Wapass, G. , 2011 SKCA (SentDig) 8: 15 months imprisonment A woman and the complainant were sleeping when her nephews (the accused and co-accused) came into the room and started assaulting the complainant. One of the intruders was carrying a bat and used it to beat up the complainant. The woman could not say which of her nephews had used the bat. RCMP arrived on the scene to find that the complainant was bleeding and his face was swollen.

He was dazed and had difficulty answering simple questions. He was taken to the hospital where it was determined that he had suffered a concussion. The accused pled guilty to the offence of assault with a weapon on the basis that he was present at the scene and was a party to the offence. He had a long record, including five convictions for violent offences.

The accused’s appeal was dismissed. (In this case there was only one victim and the accused plead guilty solely on the basis that he was present at the scene). • Shingoose, J.D., 2009 SKCA (SentDig) 17: 15 months incarceration The accused assaulted his pregnant common-law spouse with a belt and a video game cord. He also punched her and kicked her several times in the stomach. The victim claims the assault occurred because she refused to make him breakfast. Two days after the assault, the victim wanted to drop the charges, but the Crown refused to do so.

The accused had quite a long record with 4 violent offences. The Court of Appeal dismissed the accused’s appeal. (In this instance there was again only one victim and that victim wanted the charges dropped against the accused). Based on these decisions, the sentencing range for an assault with a weapon in aggravated circumstances for offenders with a criminal record is between 15 and 48 months incarceration.

[ 18 ] The circumstances of the offence Mr. Piapot committed are certainly at the higher end of the gravity spectrum for an assault with a weapon. [ 19 ] The Crown rightly argues that in a case where a weapon is used to assault someone – either by actual or threatened use – it is important to consider the harm the weapon could cause. For instance, swinging a bat at another person is more serious and more deserving of a significant sentence than swinging a stick. Mr.

Piapot used a car to threaten the victims – a weapon of extraordinary size and weight which can cause catastrophic damage if used to target people; in fact, employed in that way it is a weapon comparable to a firearm. [ 20 ] Mr. Piapot used his car that night in a way similar to a gun. He chased the 3 victims, including a child, in their vehicle at high speeds on icy roads over the course of several blocks through the City of Regina, coming as close as six inches to their car. On one occasion, he attempted to ram his vehicle into theirs.

The incident only ended for the victims when they happened upon a police cruiser investigating another matter. Even then, the accused sped off with the police in pursuit. While the victims were not physically injured in the course of the pursuit, the emotional trauma was significant. One can only imagine the terror that the two women and the child must have felt during the pursuit by the accused. Furthermore, Mr.

Piapot, driving dangerously through residential areas, also put many other persons besides the targeted victims in significant danger with his behaviour. [ 21 ] Another aggravating factor, as the Crown correctly pointed out, is that it was the second time within 18 days that Mr. Piapot assaulted his ex-girlfriend, Ms. Ireland-Staite. [ 22 ] It is also noteworthy that Mr. Piapot put the victims in this case through the stress of a trial and just as significant, to date Mr. Piapot has shown absolutely no remorse for his actions. [ 23 ] The factors respecting Mr. Piapot’s moral blameworthiness are conflicting.

On one hand, he certainly knew what kind of danger his behaviour created and nevertheless recklessly pursued the victims. However, Mr. Piapot has significant Gladue factors that must be taken into consideration. His horrific upbringing which drastically diminished his life chances and correspondingly increased the risk of getting into conflict with the law, must and has been taken into consideration. [ 24 ] In view of the severely aggravating circumstances of the offence as outlined herein I find that a prison sentence of more than two years is appropriate in this case.

The circumstances here are similar in gravity to those in Payne, Hansen and LaChance. In all of those cases the accused received a sentence of more than two years imprisonment.

(2) Is there a substantial risk that Mr. Piapot will reoffend? [ 25 ] Dr. Tomita writes in his expert report that based on the applied violence risk assessment methods Mr. Piapot is at a high risk of violently reoffending (at para 29). Pursuant to the Violence Risk Appraisal Guide Mr. Piapot falls into the highest of 9 risk categories. This means that he shares characteristics of a group of offenders who are at high risk of having a future charge for another violent offence (at para 152). The Historical Clinical Risk-20 Version 3 test also identified a number of risk factors that support a finding that Mr.

Piapot is, absent a prolonged treatment intervention, likely to reoffend violently. This assessment shows that, based on his risk factors, there are several plausible future risk scenarios of violence (at para 201). [ 26 ] Dr. Tomita’s assessment is borne out by the historical background of offending of Mr. Piapot. As the Crown pointed out in its submissions, Mr. Piapot’s history discloses a disturbing pattern of repetitive criminal behaviour. With the exception of the time spent in custody, Mr. Piapot’s criminal record is virtually uninterrupted from age 12 to present. His conduct while

institutionalized is equally troubling, often times requiring Mr. Piapot to be placed in segregation and high security areas. [ 27 ] The Crown also points out, and I accept, that in the past Mr. Piapot has reoffended very quickly upon being released from custody. By way of example, in 2007 he committed a 7–11 robbery less than 12 hours after being released from custody. In April 2009 he violated his statutory release the same day he was released by not returning to Oskana House. In September 2009 he breached his statutory release within days of being released. Each time Mr.

Piapot remained on the run until arrested on new matters. In 2014 he assaulted Ms. Ireland-Staite approximately 40 days after being released from spending 4 years in prison. He then assaulted her and Ms. Whitequill and her son, 18 days later in the commission of the predicate offence relating to these proceedings. After being released on bail for those offences he committed a residential break and enter on May 11, 2014. [ 28 ] During cross-examination at the sentencing hearing, Dr. Tomita denied that it would be sufficient to manage Mr.

Piapot’s risk to reoffend by pursuing a combination of non-correctional inpatient treatment for his substance abuse followed by a regular regime of counseling in the community (T61, at lines 30 to 36). According to Dr. Tomita, Mr. Piapot would likely not be able to fully commit and adhere to a treatment program in the community unless he had benefitted from some institutional treatment under strict supervision before that time (T62, at lines 1 to 7). This assessment seems plausible in view of the fact that Mr.

Piapot has a long history of absconding from legal supervision in the community and non-abiding by court orders – as a youth as well as an adult. [ 29 ] It is true that Dr. Tomita, when questioned by the Court at the end of his testimony, stated that in a scenario where Mr. Piapot received no institutional programming, Mr. Piapot would likely not reoffend violently while under parole supervision in the community, because that did not happen in the past. He did concede however that in those circumstances Mr.

Piapot did reoffend, including car thefts and high speed chases, (not to mention many breach offences). (T63, lines 16 to 20). Dr. Tomita also stated (at T63, lines 12 to 21) that if Mr. Piapot did not receive any treatment or programming and was released into the community on parole, his functioning (in the community) would be much worse, meaning not complying with release conditions, lapsing back into alcohol and drug use and going back into custody for breaches and being re-released. In essence he would therefore be eventually released into the community without being rehabilitated. [ 30 ] What I take from Dr.

Tomita’s report and viva voce evidence therefore is that Mr. Piapot, without the proper programming that he can only obtain in a correctional facility, will definitely reoffend to some degree while out of custody and under parole supervision. Once Mr. Piapot is off of probation he is likely to violently reoffend unless he has had the benefit of institutional programming. As the test under

section 753.1 (

b) is whether or not there is a substantial risk that the offender will reoffend (not necessarily violently reoffend), I am convinced beyond a reasonable doubt that if released without treatment, Mr. Piapot is at substantial risk to reoffend and very likely with violence at some point.

(3) Is there a reasonable possibility of eventual control of the risk in the community? [ 31 ] In his expert report Dr . Tomita writes that Mr. Piapot has not yet had an opportunity to engage in treatment that was appropriate to address his level and type of needs. Mr. Piapot needs high intensity treatment to address his Antisocial Personality Disorder as well as his alcohol and substance addictions (at para 31). [ 32 ] Dr. Tomita is of the further opinion that although Mr. Piapot’s response to high intensity treatment is untested, such treatment could increase the likelihood that Mr.

Piapot will be able to adhere to the conditions of community legal supervision without absconding. If he receives a federal sentence of sufficient duration to complete the high intensity treatment programs he needs, then there is a reasonable possibility of eventual control of Mr. Piapot’s risk in the community on parole supervision (at para 37). Further, supposing that he has a reasonable response to parole supervision, then one can expect that he will be able to replicate in the community his ability to conform to rules without reoffending. He can then continue treatment in the community, build

social supports for maintaining recovery from addictions and make further plans to increase community stability (at para 39). [ 33 ] Dr. Tomita concludes his assessment in stating that one must concede the possibility that Mr. Piapot’s risk will outlast even a long-term period of parole supervision; but balanced against the possibility of a risk-reducing treatment effect and a reasonably good level of treatability it would be premature to conclude the only method of containing his risk is incarceration (at para 40). There remains a reasonable possibility of eventual control of Mr.

Piapot’s risk in the community (at para 212). [ 34 ] Based on Dr. Tomita’s expert evidence and as conceded by the Crown and Defence, I am satisfied that there is a reasonable possibility of eventual control of Mr. Piapot’s risk in the community.

(4) Conclusion [ 35 ] I am satisfied therefore that the appropriate sentence for the predicate offence (assault with a weapon) is a prison term of two years or more and that there is a substantial risk that Mr. Piapot will reoffend. However, there is as well the reasonable possibility of eventual control of the risk in the community. I therefore find Mr. Piapot to be a long-term offender pursuant to

section 753.1(1) of the Criminal Code . 2. The Appropriate Sentence for the Predicate Offence and the Appropriate Period of Long-Term Supervision [ 36 ]

Section 753.1(3) of the Criminal Code provides that [i]f 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 must be a minimum punishment of imprisonment for a term of two years; and (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. [ 37 ] The purposes and principles of sentencing, as set out in the sections 718, 718.1 and 718.2 of the Criminal Code and applicable to “regular” sentencing proceedings, apply to long-term offender sentencings as well. [ 38 ] When applying these general principles in the context of a long-term offender sentencing, I must however not lose sight of the paramount concerns underlying the

Part XXIV provisions which are 1) protecting the public from the risk of reoffence and 2) rehabilitating the offender as well as reintegrating him back into the community. This means that the public’s need for protection by separating the offender from society accompanied with the necessary treatment for a prolonged period of time and eventually reintegrating him under a long-term supervision order is the main consideration in determining the appropriate sentence of incarceration.

It is therefore crucial that the imposed sentence provides sufficient time for appropriate treatment regimes to be applied in order to secure the offender’s rehabilitation (see R v Pelletier, 2011 SKQB 7 at para 186 , 391 Sask R 14). [ 39 ] The Crown in its submissions asks for a penitentiary term of 48 months, followed by a period of long-term supervision of 10 years. The Defence takes the position that a 30 months jail sentence and a 5 year long-term supervision order are appropriate.

[ 40 ] Robert Erickson, a community program manager for Correctional Service Canada (“CSC”), testified with regards to the treatment programs that would be available for and beneficial to Mr. Piapot in the federal penitentiary. Mr. Erickson identified seven dynamic risk factors (personal/emotional, substance abuse, marital/family, education employment, associates, attitude, and community function) that CSC considers when preparing a correctional plan for an individual. He was familiar with Mr.

Piapot’s circumstances and identified 3 critical issues that needed to be addressed which included personal/emotional, marital/family and substance abuse. Based on these risk factors, Mr. Piapot’s correctional plan, according to Mr. Erickson, would include an Aboriginal Basic Healing program, the In Search of Your Warrior program (a program that is geared towards Aboriginal offenders and puts emphasis on substance abuse and violence), and the Violence Prevention Program. [ 41 ] Pursuant to Mr. Erickson, a time frame between 18 and 24 months in federal penitentiary would be sufficient for Mr.

Piapot to complete the required treatment. Mr. Erickson also testified that the Parole Board of Canada customarily grants full parole to an offender after completion of half of his sentence. If this is the case for Mr. Piapot, a minimum sentence of 36 months in a federal penitentiary is required to ensure enough time to complete the treatment essential for his rehabilitation. [ 42 ] Mr. Piapot testified in these proceedings that he is now well motivated to seek out treatment. This is borne out to some degree by the fact that Mr.

Piapot was, according to the records filed and testimony given in these proceedings, making positive progress with his programming on the last occasion he was convicted of a violent offence. That offence resulted from an incident that occurred on January 28, 2010. That conviction was however eventually overturned on appeal and Mr. Piapot, who was also subjected to a LTSO as a result of that conviction, was released from custody. This had the effect of terminating all programming Mr. Piapot was receiving in the federal institution. The conviction being overturned on appeal had the positive effect of Mr.

Piapot not being found guilty of yet another violent offence but unfortunately, it also resulted in Mr. Piapot not receiving the programming that he so desperately needed at a time when he was showing signs of responding positively to programming. Instead he was released into the community and within 40 days committed an assault on his girlfriend and within 18 days of that committed another series of offences, including the predicate offence, which as we know was an assault with a weapon on his girlfriend and two others. [ 43 ] Based on Mr.

Erickson’s evidence and the prevailing sentencing objectives of public protection and rehabilitation, I impose a prison term of 36 months on Mr. Piapot on a go forward basis. At the half way point of this period of incarceration, Mr. Piapot, if he is motivated as he says, should have completed the necessary treatment and it will be up to the Parole Board of Canada to grant or withhold parole accordingly. Thirty six months incarceration certainly is at the higher end of the sentencing range for an assault with a weapon.

While this sentence is still consistent with the fundamental principle of sentencing, it does focus on the key components of public protection and rehabilitation which are paramount in these proceedings and which justify what might otherwise seem to be a slightly higher sentence than what might be imposed outside of

Part XXIV. [ 44 ] The length of a period of long-term supervision is based on an offender's criminal past and the likelihood that he or she will reoffend after being released from prison ( M.(L.) at para 47 ). The Crown seeks the maximum period of 10 years community supervision. The Defence’s submission is that 5 years are sufficient. [ 45 ] I agree with the Crown that it is unrealistic to think that the work for Mr. Piapot to change his deeply rooted path of offending behaviour is completed at the moment he walks out of prison, no matter how well he does in the institutional treatment programs.

The kind of change needed certainly will take more time and effort and probably will not be without setbacks. Dr. Tomita wrote in his expert report that, “assuming Mr. Piapot is subject to a long-term supervision order, he is most likely to be the type of offender who has an initial pattern of parole releases and suspensions followed by re-releases with, optimally, a pattern of reconciling to the need to comply with supervision and a settling down into compliance with parole conditions” (at para 212). [ 46 ] During his testimony, Dr. Tomita confirmed that stabilizing a person like Mr.

Piapot in the community after release will take time (T40, lines 14 to 16). Hence, a lengthy period of community supervision is required. However, I do not think that the maximum period of 10 years, as suggested by the Crown, is necessary. I say this in part because Mr. Piapot has shown signs of responding to programming and now seems well motivated. Additionally, Mr. Piapots brother, Ashley Papequash, who also testified in these proceedings, was made the subject of a LTSO in 2013 pursuant to proceedings in the Court of Queen’s Bench (R. v. Papequash, 2013 SKQB 369 ) and received a 7 year LTSO.

Presumably as brothers they grew up under similar circumstances and life experiences. Each has a violent criminal past. I am satisfied therefore that a period of 7 years, the same as received by Mr. Papequash, is sufficient to reintegrate Mr. Piapot into the community and control the risk of reoffending.

3. The Appropriate Sentence for the Remaining Offences, i.e. the Common Assault, the Dangerous Driving and the Flight from the Police [ 47 ] It is undisputed among the parties that at the time of this decision, Mr. Piapot will have accumulated approximately 24 months of remand credit. The Crown and the Defence both agree to apply this remand time to the sentences for the remaining offences (common assault on his girlfriend, dangerous driving and evading the police).

That said, the sentences for the other offences are as follows: • I impose a global sentence of 22 months imprisonment plus a 2 year driving prohibition for the dangerous driving (section 249) and flight offence (section 249.1). Taking into account the remand credit, Mr. Piapot has served his prison time on these charges. • The sentence for the assault (section 265) on his ex-girlfriend, Ms. Ireland-Staite, is 2 months imprisonment consecutive, which also results in a time served sentence after accounting for the remand credit.

V) Conclusion [ 48 ] I therefore designate Mr. Piapot as a long-term offender and sentence him on a go forward basis to 36 months in prison on the predicate offence of assault with a weapon being a motor vehicle. I further order that he be subject to long-term supervision in the community after release for a period of 7 years. The sentence on the dangerous driving, and the flight from the police is a global sentence of 22 months consecutive – which after accounting for the remand credit is time served.

The sentence on the assault conviction is one of 2 months consecutive – which again after accounting for remand credit is time served. I impose a 2 year driving prohibition ( section 259(2) of the Criminal Code ) for the dangerous driving. The victim fine surcharge for the four offences amounts to $800.00 ( section 737(2) (b)(ii)). I also make an order pursuant to

section 760 (respecting disclosure to Correctional Service of Canada) and a DNA order (section 487.051(1)). Lastly, I prohibit Mr. Piapot from possessing any firearm, cross- bow, restricted weapon, ammunition and explosive substance for life (section 109(3)). ________________________ K.A. Lang, J.