Her Majesty the Queen - v. -, 2022 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 27 Date: June 17, 2022 Information: 991007357 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - L.P. Appearing: L. Dunning For the Crown M. Nolin For the Accused DECISION ON DANGEROUS OFFENDER APPLICATION D.C. SCOTT , J Introduction [ 1 ] On September 19, 2018, L.P. was convicted of assault on his intimate partner, N.L., causing her bodily harm contrary to s. 267 (

b) of the Criminal Code and of breaching a s. 810.2 recognizance by failing to keep the peace and be of good behaviour contrary to s. 811 of the Criminal Code : trial decision at 2018 SKPC 54 . [ 2 ] The Crown gave notice that it intended to apply under

Part XXIV of the Criminal Code , for an order declaring Mr. L.P. to be a dangerous offender. I ordered an assessment of Mr. L.P. be completed by Dr. Shabehram Lohrasbe, pursuant to s. 752.1 of the Criminal Code . [ 3 ] The hearing took place on several days between November 23, 2020, and February 14, 2022, adjourned from time to time due to a change of defence counsel; the court’s schedule; counsels’ schedules; and illness, restrictions and lockdowns related to the pandemic.

[ 4 ] At the hearing, the Crown called as institutional witnesses Kyle Strawford, Scott Oar, Patricia Walker, Julie Rogal, Shelly Farrell, and Craig Hilsendager. Transcripts of evidence from James Gonzo, Chrystal Wigton, and Craig Podgursky were filed by consent. In addition, extensive documentary evidence was tendered by the Crown: Exhibits P-8 and P-9. Offence binders, related to Mr. L.P.’s criminal history, were filed: Exhibits P-6 and P-7. A pre-sentence report was prepared for the Court’s consideration. [ 5 ] Dr.

Shabehram Lohrasbe testified as the Court’s witness presenting a forensic psychiatric assessment and updated report. [ 6 ] Dr. Terry Nicholaichuk testified for the defence and presented a psychological assessment and updated report. Dr. Michelle Stewart testified and presented a Gladue report. The defence filed Correctional Service Canada (CSC) statistical information in a Long- Term Supervision Order Court Package 2015-2016 [Exhibit D-1] and Dangerous Offenders Court Package 2015-2016 [Exhibit D-2]. [ 7 ] Mr. L.P.’s mother, A.S., testified as did Mr. L.P.. [ 8 ] The Crown’s position is that Mr.

L.P. should be designated a dangerous offender and sentenced to an indeterminate sentence. For the following reasons, I conclude that Mr. L.P. is not designated as a dangerous offender. Rather, I find him to be a long- term offender. I sentence him to a custodial sentence of 5 years for the assault causing bodily harm and impose a long-term supervision order of 10 years. I impose a further custodial sentence of 3 years for breaching his s. 810.2 recognizance, to be served consecutively. I grant Mr. L.P. remand credit of 5.5 years. Accordingly, he will remain in custody for a further period of 30 months. Mr.

L.P.’s Personal Circumstances [ 9 ] Mr. L.P.’s circumstances are derived from his testimony and that of his mother, as well as from Dr. Lohrasbe’s reports, the pre-sentence report, and the Gladue Report. [ 10 ] L.P. is now 42 years of age and a member of the T[...] First Nation, with connections to Pelican Lake First Nation and Sweetgrass First Nation. He is the only child of his biological parents but is the oldest of nine siblings from his father and five siblings from his mother. [ 11 ] His maternal grandfather and his mother attended residential schools. According to Mr.

L.P.’s aunt, she and her siblings, including Mr. L.P.’s mother, were placed in foster care, where the children experienced physical, sexual, and emotional abuse. [ 12 ] Mr. L.P. was raised by his mother who struggled with alcoholism. As a child, he was cared for by grandparents, aunts, and uncles, when his mother was drinking. Growing up, he was particularly close to his younger sister, S.P.. She and Mr. L.P. were regularly left in charge of caring for the younger children at home. He would hunt to provide food for his siblings. [ 13 ] Mr. L.P. and his sister were often victims of physical abuse by their parents.

One example is that Mr. L.P. was struck on the head with a hammer because the house was messy. Mr. L.P.’s aunt confirmed that Mr. L.P.’s mother would become angry and strike the children with items such as a cast iron frying pan. [ 14 ] Because of the dysfunction in the home, Mr. L.P. and his siblings were in and out of foster care, where they were abused. [ 15 ] Mr. L.P.’s mother remarried when he was nine years old. His stepfather sexually and physically abused him and his siblings. Mr. L.P. witnessed domestic abuse by his stepfather toward his mother.

The stepfather also committed animal cruelty toward their pets. Mr. L.P. reports being sexually abused by a male teacher over a period of years. [ 16 ] Mr. L.P. has experienced significant loss. When he was six years of age, three of his cousins died in a fire. Another cousin died in a motor vehicle accident, in which Mr. L.P. was also a passenger. His maternal grandfather, one of his primary caregivers, passed away in 2013. In 2017, his brother died. [ 17 ] During his early education, Mr. L.P. received awards for attendance and most improved student in grade 8.

While living with his father at Pelican Lake First Nation, he attended a partial semester in grade 10. He dropped out of school and did not complete his education at that time. However, he learned to fix bikes and vehicles. In recent years he has been able to complete all but one credit toward his GED. [ 18 ] Mr. L.P.’s Indigenous heritage is important to him. As a child, he participated in Indigenous cultural and spiritual ceremonies, including pow-wows, feasts and drumming, sweats and sun dances.

He also spent time with his biological father who is a cultural advisor and operates a sweat lodge at Pelican Lake First Nation. While in custody Mr. L.P. smudges regularly and has connected with Elder Lorne Gardipy. [ 19 ] Mr. L.P. has struggled with mental health challenges and has been diagnosed with a number of conditions and dysfunctions, including schizotypal personality disorder, alcohol dependence and schizophrenia. While he has not been formally diagnosed, it is believed that he suffers from fetal alcohol spectrum disorder (FASD) and cognitive deficits. [ 20 ] Mr.

L.P. continues to value family connections. His pro-social supports are his sisters and his aunt. His relationship with his mother has been restored. Criminal History [ 21 ] Mr. L.P.’s criminal record was filed as Exhibit P-5. He has no youth record but an extensive adult criminal history dating back to 1998. In addition to the predicate offences, his record consists of almost 50 convictions, including five common assaults, four sexual assaults, assault with a weapon, break and enter with intent to commit assault, several property and mischief offences, as well as numerous breaches of court orders.

Two conditional sentences were terminated. He had 13 prior convictions for breach of s. 810.2 recognizances, by consuming alcohol, possessing weapons and by failing to keep the peace, abide by a curfew, and carry a copy of the recognizance.

[ 22 ] I have reviewed the offence binders filed as Exhibits P-6 and P-7 in this hearing. The following is a

summary of the violence- related convictions, along with the offence dates (not sentencing dates), circumstances, and sentences, derived from the criminal record and binders. I note that the factors related to s. 718.2 (

e) of the Criminal Code were taken into account in most but not all of his sentencings. 1. Sexual assault (December 22, 1999) - 12 months time served, 1-year conditional sentence, 2 years probation Mr. L.P. was 21 years of age when he pled guilty to sexually assaulting a visitor at a home where he was staying on the First Nation. The victim returned home with her boyfriend to find Mr. L.P. sleeping on the sofa bed. Mr. L.P. was asked to move to the floor and everyone went to sleep. In the early morning hours, the complainant felt Mr. L.P.’s penis and hand rubbing her genitalia.

He had spent 11.5 months in pre-sentence custody. The record makes no reference to Mr. L.P.’s Indigenous ancestry. 2. Assault, Sexual Assault (2 charges) (November 11, 2001) - Time served on the assault, 20 months on each of the sexual assault charges, concurrent After a trial, Mr. L.P. was convicted of two counts of sexual assault and one of assault. The offences, occurring within minutes of each other, were against three women, all known to him and who were asleep at the time. The sexual assaults consisted of Mr. L.P.’s hand touching the victims’ genitals over a blanket or clothing.

The assault involved kissing on the lips and neck. 3. Assault (July 13, 2003) - 4 months consecutive to sentence being served Mr. L.P. was found guilty of assaulting an inmate in the correctional centre by striking him a number of times, while they were in line to pick up their meal trays. 4. B reak, enter and commit sexual assault (September 8, 2004) - 2 years incarceration Mr. L.P. was found guilty of breaking into his female cousin’s residence and massaging her buttocks over her clothing while she slept. The offence occurred five days after his release from jail. 5.

Assault with a weapon (September 19, 2004) - 3.5 months time served and 1 year probation Mr. L.P. was found guilty of assaulting his female cousin by hitting her on the head with a 26-ounce bottle of alcohol after a struggle when he tried to take the bottle from her. She fell to the ground. He then grabbed and pulled her. Both were intoxicated at the time. 6. Assault (December 17, 2007) - 3 years time served Mr. L.P. was found guilty of assaulting the complainant, an acquaintance at a party, by striking him twice with a fist in the head, knocking him to the floor.

The victim suffered a broken nose and various injuries to his face and head, requiring stitches. 7. Assault (June 24, 2009) - 424 days time served and probation Mr. L.P. pled guilty to assault. The altercation arose in the context of a fight between dogs owned by Mr. L.P. and the victim leading to a consensual fight between Mr. L.P. and the victim. Mr. L.P. admitted to striking the victim more times than necessary, giving him a bloody nose and bruise under his eye. The sentence was also for taking a truck without consent. Because Mr. L.P. was mechanically inclined, he was asked by the owner to fix the vehicle.

While in his possession, Mr. L.P. drove the vehicle for a number of hours. 8. Break, enter and commit assault (April 4, 2010) - 30 months Mr. L.P. was found guilty of breaking and entering the residence of his aunt and committing an assault on her. The home was familiar to Mr. L.P. and, as a family member, he had visited there as a guest in the past. On this occasion, Mr. L.P. entered the home through the window because he was hungry and cold. The complainant awoke to Mr. L.P. stroking her knee.

The sentencing judge found that, apart from touching his aunt’s bare knee and the fright it gave her seeing an intruder, there was no other violence or threats made. [ 23 ] A number of assessments and reports were prepared to assist the sentencing courts on the above offences, which are also found in the offence binders. Predicate Offences [ 24 ] Mr.

L.P. was found guilty of assaulting his intimate partner, N.L., on March 31, 2017, thereby causing her bodily harm and of breaching his s. 810.2 recognizance for failing to keep the peace and be of good behaviour in relation to the same incident. [ 25 ] The altercation began as an argument between Mr. L.P. and N.L., after they had been consuming alcohol. Their disagreement escalated to the point where Mr. L.P. began to physically assault N.L. The violence continued over a prolonged period of time as they walked down public streets and alleys. During that time, Mr.

L.P. grabbed N.L.’s throat, bit her head, mouth and fingers, punched her face, applied pressure to her wrists, and dragged her by her hair. She attempted to leave the situation, but Mr. L.P. prevented her from doing so, grabbing and dragging her by her clothes. The assaults continued even after she stopped resisting. The couple ended up at Mr. L.P.’s apartment, where he sat on top of her and placed his hands on her neck. [ 26 ] N.L.’s injuries included bite marks to her lip, hand and arm, swelling and bruises to her chin, cuts and bruises to her arm and hand, leaving her unable to use her hand for three weeks.

She required medical attention and was prescribed medication. She also experienced considerable mental distress during and after the incident. [ 27 ] At the time of the assault, Mr. L.P. was bound by a s. 810.2 recognizance, which he had entered into on January 19, 2017,

requiring him to keep the peace and be of good behavior. He was found guilty of breaching this condition in relation to the assault. Functioning in institutions [ 28 ] Kyle Strawford , as acting assistant deputy director of programming at the Regina Correctional Centre and a previous correctional officer, presented risk assessments for Mr. L.P., found in Exhibit P-8. He testified that Mr. L.P. had been assessed as a high risk to reoffend in 2011. Mr. Strawford did not recall many specifics about his dealings with Mr.

L.P., but he did not personally have any difficulties with him. [ 29 ] He testified that from the report filed, it appeared Mr. L.P. had accumulated 97 institutional charges from 1998. Institutional charges can include breaking rules and are not necessarily criminal offences though they can be. Mr. Strawford had no knowledge of the nature of Mr. L.P.'s charges. According to 2012 reports, Mr.

L.P. was not willing to participate in domestic violence programming, but he did participate in Alcoholics Anonymous (AA) and "Courage to Change". [ 30 ] Scott Oar , a correctional officer who has been an associate trainer, activities co-ordinator and acting assistant deputy director of programs at the Saskatoon Correctional Centre, testified to some behavioural issues with Mr. L.P. in that facility. In his testimony, he referenced reports and documents in Exhibit P-8. Mr. Oar testified there were some concerns regarding Mr. L.P.’s behaviour in the low security dorms during the fall of 2019 and 2020.

Some inmates complained that Mr. L.P. made sexually inappropriate comments, and exposed his genitals, making them feel unsafe. He denied the allegations, which could not be corroborated. Female staff reported Mr. L.P. had been staring or leering at them. He was moved to medium security but later returned to low security. [ 31 ] Mr. Oar described Mr. L.P. as a smart, independently functioning inmate.

He would have had access to a chaplain and cultural programming. [ 32 ] Shelly Farrell worked as an assistant deputy director at the Saskatoon Correctional Centre for nine years and now works in strategic policy and legislation. As an inmate, Mr. L.P. was on Ms. Farrell's unit. In February 2019, she became aware of leering or staring and inappropriate movement of Mr. L.P.'s lips, considered to be sexually suggestive, toward a female staff.

In June 2019, he reportedly asked a staff member for cigarettes, tried to give a gift of earrings to one of the staff and made another female staff person feel uncomfortable while he was being escorted in the yard. There were other infractions such as requesting inappropriate things and not following rules. He was referred to a particular unit for his safety related to his past sex offending and not for mental health concerns.

On his own initiative, he chose to write a letter of apology to the staff he had offended. [ 33 ] Craig Hilsendager was employed by Correctional Services Canada holding positions of staff nurse and program coordinator. His testimony referenced Exhibit P-9. Mr. Hilsendager testified to Mr. L.P.’s participation in the Wellspring High Intensity Sex Offender program offered at the Regional Psychiatric Centre (RPC) between April 2005 and May 2006. Mr. Hilsendager worked with Mr. L.P., but he did not facilitate Mr. L.P.’s group for individuals with cognitive, behavioural and mental health deficits. Mr.

L.P. attended all of the sessions, but it appeared to Mr. Hilsendager there were components Mr. L.P. did not understand. While Mr. L.P. tended to minimize his responsibility, Mr. Hilsendager believed he was committed to making necessary changes and did make some progress. When Mr. L.P. struggled with mental health issues, he was compliant regarding his medication which was indicative of progress. His medications had a positive effect on Mr. L.P.. Community supervision [ 34 ] Patricia Walker worked at Correctional Services Canada from 1996 to 2018. As Mr.

L.P.’s parole officer, she supervised him at Oskana Centre in Regina in 2006. She referenced documents contained in binder Exhibit P-9. According to Ms. Walker, Mr. L.P. did well during the time she supervised him. His urinalysis screens were negative or clean. He followed his medication regime, including pills and injections, resulting in dramatically improved thinking and behaviour on his part. He had a successful visit with family during a five-day pass over the Christmas holidays, with the support of his mother and the Band on his First Nation.

He participated in mental health life skills programming through the Canadian Mental Health Clinic, which he attended daily. He met weekly with the psychologist. His behaviour in the Oskana Centre was good. They worked well together; Ms. Walker concluded Mr. L.P. had the ability to enter into a therapeutic relationship, which she saw as very important. [ 35 ] Ms. Walker was aware of Mr. L.P.’s participation in the Wellspring program at the RPC. He regularly attended the day-long program, but struggled with some of the concepts. He was assessed as being in the contemplative or thinking stage. Ms.

Walker acknowledged that a lack of formal education and the “cluster of cognitive challenges” that Mr. L.P. experienced could have affected his comprehension of the concepts in that program. [ 36 ] Julie Rogal is with Corrections, Policing and Public Safety for the Province of Saskatchewan, as reintegration coordinator and acting assistant deputy director of programs at the Saskatoon Correctional Centre. In that capacity, she worked with the Serious Violent Offender Response (SVOR) program providing intensive supervision to Mr.

L.P., while he was bound by the s. 810.2 recognizance, beginning in January 2017 and continuing to the predicate offence date. In her testimony, she referred to documents in Exhibit P-8. Ms. Rogal found Mr. L.P. willing to participate in programming, to meet with a psychiatrist, but reluctant to take medication. The first referral to Dr. Mela was made on February 22, 2017, but there was a lengthy waiting list. [ 37 ] Through the SVOR program, Mr. L.P. met regularly with his personal counsellor, Ms.

Bzdel, as well as with the Canadian Mental Health Association worker, and with a representative of the Saskatoon Tribal Council. In addition, he kept his appointments with all other members of the SVOR team. He also showed interest in acquiring work skills and worked with an agency to obtain safety work certification. He complied with his curfew and was able to focus on his recovery. He maintained sobriety using avoidance strategies when dealing with high-risk residents of the Lighthouse, his approved residence. He had complied with everything that was required of him. [ 38 ] Mr. L.P. expressed to Ms.

Rogal the importance of having traditional components to his treatment and therapy. Throughout this time, he was attending personal counselling regularly and enjoying it.

[ 39 ] In early March 2017, he relocated to a different approved residence. He was dealing with grief over the recent death of his brother. On March 16, 2017, at her meeting with Mr. L.P., he seemed more vulnerable and unstable. Although the team identified the urgency in having Mr. L.P. referred to Dr. Mela at the earliest opportunity he was not able to see the psychiatrist. Neither was he able to access the violence prevention program. Other Institutional Evidence [ 40 ] Chrystal Wigton is a regional program manager with Correctional Services Canada.

She is responsible for staff training and policy compliance for correctional programs within the Prairie Region. By agreement between the Crown and the defence, the evidence of Ms. Wigton was provided by way of written questions and answers: Exhibit P-12. Her evidence explains the Integrated Correctional Program Model (ICPM) operating at all federal institutions and community parole offices. Within the model is a main stream and an Indigenous stream which incorporates Indigenous culture through teachings, Elder participation, and ceremony. There is also a stream for sexual offenders.

Once released to the community and while continuing under supervision, an offender participates in the maintenance component of the ICPM program. The purpose of maintenance is to allow for continued work in areas where an offender may have struggled and to assist in transferring the skills from the institution to the community. The ICPM is delivered in the penitentiary and the RPC. [ 41 ] According to Ms. Wigton’s evidence, the average wait time for an offender to start programming had increased to approximately 256 days in March 2021, due to the pandemic. Some adjustments to the program have been made.

The primer programming begins within the first three months of an offender’s sentence. The goal for an offender who is serving a determinate sentence is to commence programming as quickly as possible with the aim of completing it prior to their earliest release date (day parole eligibility), regardless of diagnoses. [ 42 ] James Gonzo was a senior project officer for administrative segregation with Correctional Services of Canada, Prairie Region.

By agreement between the Crown and the defence, the evidence of James Gonzo was presented in written form, as a transcript of his testimony in different proceedings given sometime in 2017: Exhibit P-11. In addition, a Correctional Services of Canada Court Information report completed by Mr. Gonzo was filed: Exhibit P-10. It describes the correctional process; interventions and programs, including community supervision; long-term supervision orders; and dangerous offenders.

His evidence also addressed the effect of determinate and indeterminate sentences for those designated as dangerous offenders and offenders subject to long-term supervision orders. In particular, he spoke to the number of those offenders who achieved day or full parole and the statistical information regarding the rate of reoffending. [ 43 ] Craig Podgursky served as a parole officer with the Regional Psychiatric Centre and then as a community-based parole officer. By agreement between the Crown and defence, his evidence was presented by a transcript of testimony he gave in other proceedings: Exhibit C-4.

As a community parole officer, he supervised conditionally-released federal offenders—individuals who have been determined by the Parole Board to be manageable under supervision in the community; individuals subject to statutory release; and individuals who are subject to long-term supervision orders (LTSO). [ 44 ] Mr. Podgursky’s evidence related to the supervision in the community of various federal inmates, including those who are in the community because of statutory release, or are inmates who are released into the community on an LTSO.

He testified to the types of conditions that may be imposed on offenders. Conditions often include placement in a community training residence. Some methods used for supervision include urinalysis, electronic monitoring, and collateral contacts such as family members. Psychologists are available in the parole office to conduct one-on-one counselling. Mr. Podgursky explained there is little or no discretion for parole officers to decline suspension of an offender who breaches their LTSO conditions. He testified to the consequences for individuals who breach those conditions.

Defence evidence [ 45 ] A.S. is the mother of Mr. L.P. and resides on T[...] First Nation (T[…]). She and her siblings attended residential school, as did her father, who she said drank himself to death. She described her experience at residential school as “real bad”. [ 46 ] Ms. A.S. admitted to consuming alcohol during her pregnancy with Mr. L.P.. She testified she had an alcohol problem when she was younger but has now been sober for between 20 and 30 years. She currently does food catering on the reserve for the Chief and council. [ 47 ] Mr. L.P. is Ms. A.S.’s oldest child. She explained that Mr.

L.P. did well in elementary school. She described him as a “good boy” when he was young. Ms. A.S. testified that she began a common-law relationship with C.H. when Mr. L.P. was approximately nine years of age. Mr. C.H. seriously physically assaulted Ms. A.S. over the course of approximately 10 years. [ 48 ] When Mr. L.P. was older, it appeared to Ms. A.S. that he was having hallucinations, speaking to someone who was not there. Mr. L.P. has been diagnosed with schizophrenia for which he received medication. The nurses from the health centre on the First Nation would come to their home to give Mr.

L.P. injections. [ 49 ] Ms. A.S. testified that she would be willing to have Mr. L.P. live with her on T[…]. She would be able to take him to medical appointments. Otherwise, T[…] provides transportation services for medical appointments. She would support him taking prescribed medication. She assured the court she would report Mr. L.P. to the police if he was drinking alcohol or if he stopped taking his medication or injections. The First Nation has opportunities for individuals to obtain employment training. It has an activity centre that offers counselling and cultural activities.

There are two sweat lodges on the reserve. L.P. [ 50 ] In his testimony, Mr. L.P. confirmed many of his personal circumstances set out in the reports filed with the court and referred to earlier in this decision. His first language is Cree, having been raised in a Cree speaking home. He recalls being cared for when he was young by his grandfather because of his mother’s drinking, but he was also placed in foster homes. Mr. L.P. confirmed that

he was sexually abused as a young person in his family home and in foster homes. [ 51 ] When Mr. L.P. and his siblings were taken into care, they were often separated, and he was required to change schools. He testified that before he turned 18 years old, he participated in cultural activities and was viewed as a helper in the community. [ 52 ] Mr. L.P. stated that when he was young, he liked school and was athletic. However, he dropped out in grade 10. In 2017, prior to the predicate offence, he was enrolled in the Northwest Regional College of the Meadow Lake District.

While in custody, he continued to upgrade his education. Currently, he is one class short of achieving his grade 12 education. [ 53 ] Mr. L.P. testified that during his time in the correctional centre, he contracted COVID-19 and was assaulted for which he was hospitalized. On three separate occasions, he was placed on suicide watch. [ 54 ] Mr. L.P. acknowledged that much of his offending behaviour could be attributed to his consumption of alcohol, drugs and negative peers.

He testified that the last time he consumed alcohol was the day he was arrested in April 2017 for the predicate offence, and he has maintained his sobriety since that time. He has been working with an addictions counsellor, Justin Montour, and took the initiative to start AA meetings in the correctional centre. He has also established a relationship with an Indigenous Elder, Lorne Gardipy. As a result, Mr. L.P. reported noticing a positive change in himself. Mr. L.P. also began rebuilding the relationship with his mother. [ 55 ] Mr.

L.P. testified he did not believe in Western medicine seeming to imply that it could not help him. It is his view that an Indigenous Elder would assist him in his healing. However, he did acknowledge his need for psychiatric services and treatment, perhaps for the rest of his life. He stated he is willing to see a psychiatrist and to take medication including injections if required. During his time on remand, he saw a psychiatrist once in the Saskatoon Correctional Centre and twice in the Regina Correctional Centre. [ 56 ] Mr.

L.P. testified he is confident that he will not be violent to others in the future if he is released from custody. He is now free from drugs and alcohol. He has supports in the community including the Integrated Justice Program and FASD Network. He vowed to stay away from the complainant in the predicate offence stating that he realized what he did was wrong. [ 57 ] Mr. L.P. stated that as an Indigenous man, he is interested in all types of help and accessing the best possible ways to become a better person.

He appeared to accept responsibility for his choices, recognizing that had he taken a different path and made different decisions, he would be living a better life now. Dr. Michelle Stewart [ 58 ] Dr. Stewart is a professor at the University of Regina and leads the Integrated Justice Program (IJP), which is funded by Public Safety Canada. She holds a PhD from the University of California, Davis in Justice Studies, Gender, Religion and Critical Studies. Her area of expertise and field of research is in fetal alcohol spectrum disorder and the justice system.

According to her curriculum vitae [Exhibit D-7], she received her Gladue Writer Certification in 2020. The IJP has completed Gladue reports for both the Provincial Court and the Court of Queen’s Bench. Dr. Stewart and her team prepared the Gladue report for Mr. L.P.. [ 59 ] The IJP takes an integrated approach with other agencies, such as the FASD Network and File Hills Qu’Appelle Tribal Council Restorative Justice Team, to deliver frontline supports and services for anyone who identifies as being involved with the justice system.

They work with Indigenous individuals in Saskatchewan with complex needs, including FASD. Their clientele includes high- risk federal offenders. [ 60 ] The role of IJP in relation to federal offenders is to develop a release plan and to work alongside a number of provincial and federal agencies when the offender returns to the community. The goal is to provide the individual with supports that are low barrier and trauma-informed with a focus on harm reduction in order to mitigate risk and to move toward social inclusion. [ 61 ] According to Dr.

Stewart, the IJP and the FASD Network take the position that so long as an individual is suspected of having FASD, a formal diagnosis is not required, due to the complications associated with obtaining such a diagnosis, particularly for adults. A formal diagnosis is a significant barrier to supports and services that might be necessary and appropriate. Indigenous offenders with FASD often have had inconsistent access to programming and have strained family and community relationships. [ 62 ] Dr. Stewart testified that although Mr. L.P. has not been formally diagnosed, it is believed he suffers from FASD.

He completed an intake with ICJ in July 2021 and is eligible for their services as well as those of the FASD Network now and in the future. [ 63 ] According to Dr. Stewart, Mr. L.P. has expressed a desire and commitment to participate in programming. Mr. L.P. would have access to professionals at the FASD Network with extensive expertise and resources. They will also assist with executive functioning or planning, with which people with FASD often struggle. [ 64 ] Mr.

L.P. would work closely in a prosocial way with peers, being other Indigenous individuals with a comparable type of disability such as FASD or justice system involvement. He would also have access to a knowledge keeper, who is an Indigenous person closely associated with the program. Mr. L.P. has expressed a desire to continue working with an Elder. [ 65 ] Dr. Stewart considered it positive that Mr. L.P. wants to continue to improve relationships with his family and to learn new ways of maintaining healthy relationships. Gladue Report [ 66 ] The Gladue report was prepared by Dr.

Stewart and the Integrated Justice Program for Mr. L.P.. The report, along with two letters of support, one from Andrea Kotlar-Livingston of the FASD Network and the other from Jenna Sorowski, a justice support worker with IJP, were tendered as Exhibit D-6. [ 67 ] The report provides relevant background information about Mr. L.P., including his life circumstances, family and

community. The sources for completing the report included previous assessments, his sister, his maternal aunt and Mr. L.P. himself. Information about Mr. L.P.’s background and history is included in the description of his personal circumstances in this decision. [ 68 ] The report points out that Mr. L.P. “carries with him multiple forms of trauma including developmental, historic, intergenerational, cultural and systemic”: pp. 33-34.

The writer states that he “demonstrates resilience in light of his traumas and recognizes that he needs positive supports while he works toward his healing journey”: p. 30. [ 69 ] The report refers to proposed aftercare support for Mr. L.P. offered by the FASD Network, along with other agencies, focusing on strength, healthy relationships, self-awareness, adaptive strategies, and team support: p. 41. They would develop an individualized program for him that would build on the positive relationships he has with his family, particularly his sister, S.P..

They would also facilitate his access to programming, education and employment. [ 70 ] At the request of the Crown and with consent of the defence, pages 36 to 40 of the report, headed “Federal Options”, relating to outdated Federal programs were redacted and therefore not considered by the Court. I note that the evidence of Chrystal Wigton provided information regarding the most current Federal programs. Pre-Sentence Report [ 71 ] A pre-sentence report dated November 25, 2020, was prepared for these proceedings. Much of the information contained in the report repeats information from witnesses, Dr.

Lohrasbe’s report, and the Gladue report. [ 72 ] Mr. L.P.’s risk for general reoffending was assessed as high. His score on the Ontario Domestic Assault Risk Assessment (ODARA) was in the highest range. His risk factors include his gender, prior convictions, residence stability, employment stability, family relationships, peers, drug and alcohol use, and self-management. Expert Reports and Testimony Dr. Shabehram Lohrasbe [ 73 ] Dr. Lohrasbe testified as the Court’s witness. He is a fully qualified medical practitioner and has practiced principally medicolegal psychiatry on a clinical, full-time basis since 1984.

His experience has focused on the forensic assessment and treatment of individual patients. He has experience in out-patient, in-patient, emergency, correctional and courtroom settings. Dr. Lohrasbe has conducted thousands of forensic psychiatric assessments and has regularly been called upon to testify in dangerous offender and long- term offender hearings. His education and qualifications were set out in his curriculum vitae: Exhibit C-1. [ 74 ] I qualified Dr.

Lohrasbe to give opinion evidence regarding the assessment and treatment of violent offenders, including sexually violent offenders, and particularly in relation to Mr. L.P.. [ 75 ] Dr. Lohrasbe prepared two assessment reports for Mr. L.P., the first dated February 24, 2019 [Exhibit C-2], and the second dated October 30, 2020 [Exhibit C-3]. Both reports focus on issues relevant to risk, treatability, and risk management. [ 76 ] It was apparent to Dr. Lohrasbe that Mr. L.P. had experienced multiple childhood traumas, including neglect, abuse and abandonment, as well as unnatural deaths of peers and family members.

According to Dr. Lohrasbe, such adverse events early in life can predispose an individual to a number of mental disorders, that may bring them into conflict with the justice system. [ 77 ] Dr. Lohrasbe testified that the diagnoses of schizotypal personality disorder, substance use disorder and antisocial personality disorder apply to Mr. L.P.. Schizotypal personality disorder falls at the mild end of the schizophrenia spectrum, which may be influenced by drugs and alcohol. [ 78 ] Regarding substance abuse disorder, Dr. Lohrasbe stated that substances do not by themselves cause violence.

However, substance abuse has a prominent correlation with interpersonal violence. For Mr. L.P., substance abuse has been associated with several of his violent offences. [ 79 ] The diagnosis of antisocial personality disorder is based on Mr. L.P.’s history of repeated lawbreaking and is related to irresponsibility, aggression, recklessness, and impulsivity. According to Dr. Lohrasbe, this diagnosis is of limited value as a guide to risk and treatability. [ 80 ] Dr. Lohrasbe concluded that Mr. L.P. cannot be diagnosed with any specific sexual deviancy. While Mr.

L.P. has committed sexual offences and may have exhibited bizarre sexual behaviours in the correctional centre, Dr. Lohrasbe was of the opinion that his sexual violence is the result of his lack of self-regulation and poor behavioural control rather than a specific sexual deviancy. [ 81 ] It was Dr. Lohrasbe’s opinion that Mr. L.P.’s disorders can result in mental instability and dysfunction in the foreseeable future with the possibility of brief psychotic episodes if he remains untreated.

As a result, there is a need for appropriate treatment with antipsychotic medications under proper supervision to ensure appropriate dosage. While not a panacea, medication would serve as an anchor for Mr. L.P.. [ 82 ] Dr. Lohrasbe concluded that Mr. L.P. is a high risk for future acts of violence. Mr. L.P.’s risk factors fall into four broad categories. Historical factors include his traumatic childhood experiences, recurrent criminal behaviours, and poor responses to treatment and supervision. Dispositional factors include his antisocial and schizotypal personality traits.

Contextual factors include the lack of stabilizing influences such as employment, prosocial peer groups and long-term healthy relationships. Acute precipitating factors are present in the forms of psychiatric dysfunction and substance abuse which exacerbate each other. [ 83 ] In his first report, Dr. Lohrasbe set out treatment recommendations for Mr. L.P.. He requires trauma sensitive interventions to address his lack of self-regulation; therapeutic approaches to address sexual and spousal violence; treatment for substance abuse; and

therapy for mental instability, which will include appropriate antipsychotic medication. It was Dr. Lohrasbe's view that it would take approximately two to three months to eliminate all psychotic symptoms. [ 84 ] In Dr. Lohrasbe’s first report, he did not consider Mr. L.P. a good candidate for treatment. However, he observed positive changes and developments in Mr. L.P. between his first and second interviews. [ 85 ] Dr. Lohrasbe stated in his updated report that Mr. L.P. was now willing to take medications necessary to treat his psychiatric disorders. As a result, Dr.

Lohrasbe concluded that there was now reason for greater optimism. If Mr. L.P. maintains his current willingness to take psychoactive medications and genuinely engages in relapse prevention strategies for substance abuse, the prospects for effective risk management in the community is significantly improved. [ 86 ] When speaking about the predicate offence during his second interview, Mr. L.P. had a more emotional response to his memory of the event. According to Dr. Lohrasbe, Mr. L.P. felt pain for the victim. It was Dr. Lohrasbe's opinion that Mr.

L.P.'s emotions seemed genuine and were not a cynical ploy. [ 87 ] Substance abuse is a risk factor for Mr. L.P. as there has been a persistent relationship between alcohol use and several of the violent offences, including the predicate offence. Dr. Lohrasbe was encouraged that Mr. L.P. had remained abstinent while in custody, recognizing that it will be a challenge for him to do so when he is back in the community. [ 88 ] In his second report, Dr. Lohrasbe concluded as follows: a. [Mr. L.P.] is at high risk for future acts of violence. b.

There is a reasonable possibility that his risk can be reduced through the kind of treatment interventions outlined, with a special emphasis on treatment with antipsychotic medications and participation in relapse prevention programs. c. Risk management in the community will require his cooperation; at present he appears to be motivated to participate in multiple treatment interventions. d. Prolonged incarceration is likely to negatively impact his mental health, more so that in a non-mentally disordered offender. e.

At the point that he is released into the community, a prolonged period of follow up is key to ongoing risk reduction and risk management. [ 89 ] Periodic reassessments of his treatment needs and repeat risk assessments will be necessary. [ 90 ] It was Dr. Lohrasbe’s opinion that Mr. L.P. appears to be motivated to participate in the multiple treatment interventions that are recommended. [ 91 ] Dr. Lohrasbe also suggested that Mr. L.P. be provided with an opportunity to express his Indigenous identity.

Through cultural and spiritual practices, regaining an Indigenous identity is a potential path away from his criminal lifestyle and can promote deep and sustained changes. [ 92 ] Based in part on Mr. L.P.’s success while working with Patricia Walker, Dr. Lohrasbe concluded “there are reasons to anticipate that with his cooperation a comprehensive treatment plan with extended follow up can effectively manage his risk in the community”: Exhibit C-2, p. 36. [ 93 ] Dr.

Lohrasbe stated that "almost always" over time, a therapist can convince a patient it is in their best interests to participate in treatment, even if they do not accept the label of mental disorder. Mr. L.P. has at times acknowledged his mental disorder and has taken treatment. The challenge will be to ensure it is more consistent. [ 94 ] Dr. Lohrasbe cited ageing as a “robust predictor of declining risk for violence”: Exhibit C-2, p. 35. He stated that it is reasonable to anticipate that as Mr. L.P. approaches his fifth decade this expectation of declining risk will apply to him. [ 95 ] To summarize, Dr.

Lohrasbe confirmed that Mr. L.P. is a mentally disordered man who requires long-term treatment. However, it would be premature to conclude that Mr. L.P. is not treatable. In his first report, he noted some reluctance on Mr. L.P.’s part to undertake treatment, however, by the time of his updated report, Dr. Lohrasbe acknowledged Mr. L.P.’s willingness to do so. Dr. Terry Nicholaichuk [ 96 ] Dr. Nicholaichuk was called as an expert witness by the defence. He holds a PhD in clinical psychology and has practiced in that capacity since 1987.

He has worked as a staff psychologist for the Correctional Service of Canada in clinical and administrative positions, including at the Regional Psychiatric Centre. He has worked in the forensic unit at the Saskatchewan Hospital. Dr. Nicholaichuk has engaged in research and published extensively in the areas of forensic psychology including sex offending. He regularly testifies in matters related to dangerous offender proceedings. His education and experience were set out in his curriculum vitae: Exhibit D-3. [ 97 ] I qualified Dr.

Nicholaichuk to give opinion evidence in the field of forensic psychology related to the assessment and treatment of violent offenders, including violent sex offenders, and the assessment of risk relating to violent offenders and sex offenders committing further violent crimes. [ 98 ] Dr. Nicholaichuk met with Mr. L.P. on two occasions and prepared two psychological assessments dated September 26, 2019 [Exhibit D-4] and March 22, 2021 [Exhibit D-5]. He agreed with Mr. L.P.’s diagnoses. [ 99 ] According to Dr. Nicholaichuk, schizophrenia and schizotypal disorder are on a spectrum. Schizotypal disorder tends to be

more amenable to intervention and treatment. Generally speaking, it is not as severe, and the delusions are not as fixed as they would be in someone with schizophrenia. [ 100 ] Mr. L.P.’s history indicates that he has had episodes where he has been acutely schizophrenic, but these episodes have not lasted for long periods of time. Individuals with schizophrenia tend to respond well, overall, to prescribed medication, although a small minority do not. [ 101 ] Dr. Nicholaichuk diagnosed Mr.

L.P. with a significant learning disability, for whom the development of conceptual skills, progress in reading, writing and mathematics is markedly limited. It was Dr. Nicholaichuk’s opinion that the programming offered to Mr. L.P. by CSC was directed at a high intellectual and reading level and likely did not completely take into account his learning challenges and other limitations. [ 102 ] According to Dr. Nicholaichuk, there is a possibility that Mr. L.P. may have fetal alcohol spectrum disorder. He recommended that Mr.

L.P. be referred to the Regional Psychiatric Centre for a formal diagnosis for FASD. [ 103 ] Dr. Nicholaichuk found that, in the past, Mr. L.P. was further handicapped by his alcohol use and the absence of anyone who could provide him with effective guidance and support. [ 104 ] Dr. Nicholaichuk explained that just prior to the predicate offence, because Mr. L.P. did not have access to his medications, he would have become unstable, ultimately self-medicating with alcohol. It was Dr. Nicholaichuk’s view that, because it would not be unusual for Mr.

L.P. to relapse into drinking when in the community, he would need to be monitored very closely by parole officers. [ 105 ] In his first report, Dr. Nicholaichuk recommended psychiatric care for Mr. L.P.. The best hope for any potential reintegration would be release to a closely supervised residence such as a Community Correctional Residential Facility with occupational therapy and basic life-skills building. [ 106 ] According to Dr. Nicholaichuk, the second report provides the most recent information about Mr. L.P. and best represents his current functioning. In that report, Dr.

Nicholaichuk made the same recommendations. However, he noted that Mr. L.P.’s substance abuse problem now appears to be in remission. [ 107 ] Mr. L.P.’s attitudes and perspectives appeared to have shifted since their first encounter. He admitted to having mental health problems and was actively seeking treatment. Dr. Nicholaichuk observed that Mr. L.P. seemed prepared to accept that he will be under some sort of supervision for the foreseeable future if he is released. [ 108 ] Dr. Nicholaichuk was encouraged that Mr.

L.P. regards culturally and spiritually oriented treatment positively and that he has formed a relationship with an Elder which has been helpful to him. Data from CSC indicates the number and severity of new offences declined when Indigenous men were provided with culturally appropriate treatment and support. [ 109 ] The difference between Dr. Nicholaichuk’s conclusions in his two reports is that Mr. L.P. is now more interested in solving his many personal problems and receiving treatment and medical help. According to Dr. Nicholaichuk, it is too soon to conclude that Mr.

L.P. cannot be managed in the community because a strategy designed to address his challenges has not yet been attempted. [ 110 ] Dr. Nicholaichuk testified that he is in general agreement with Dr. Lohrasbe regarding Mr. L.P.’s willingness to respond to concerns about his treatment needs and risk management, as opposed to their earlier interviews with him. [ 111 ] Dr. Nicholaichuk testified that violent offending tends to decrease as a person ages, typically around 38 or 39 years of age. By the age of 50 years, recidivistic violent offending is very infrequent regardless of treatment. Dr.

Nicholaichuk opined that while risk had been established based upon Mr. L.P.’s gender and criminal history, the severity of his needs due to changeable factors such as substance use and ageing might be declining. [ 112 ] According to Dr. Nicholaichuk, the risk of Mr. L.P. committing new sexual offences is very low. There are no diagnoses of any paraphilias that would indicate Mr. L.P. will continue sex offending into old age. [ 113 ] Dr. Nicholaichuk noted that, while on remand, Mr.

L.P. would not have been receiving medication for his psychiatric disorders as correctional centres are not set up to offer this service. While he has been difficult, he has not been overtly violent even though not being treated for his mental disorders. [ 114 ] Dr. Nicholaichuk agreed that, ordinarily, if conventional programming available by CSC takes approximately 8 to 10 months to complete, modified programming might take approximately 16 months to complete. However, that may not be the case due to the COVID-19 virus and restricted movement within the correctional institutions. Dr.

Nicholaichuk agreed that in order to have confidence in changed behaviour, there needs to be demonstration of different behavior for at least 18 months. Legal Framework [ 115 ] The primary objective of the dangerous offender sentencing regime is the protection of the public.

Part XXIV of the Criminal Code sets out the criteria to be satisfied for a dangerous offender declaration. The relevant statutory provisions in this case are as follows: 752. In this Part, … “serious personal injury offence” means

(

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, … 753(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

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

i) a pattern of repetitive behavior by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, or (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, . . . 753(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

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

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

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

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

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. 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. [ 116 ] The dangerous offender sentencing framework is a two-stage process: the designation as a dangerous offender (s. 753(1)) and the imposition of a penalty (s. 753(4) and (4.1)): R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936 [ Boutilier ]. If the criteria are met, the Court has no discretion but to make the designation.

However, if the designation is made, the Court does have discretion at the penalty stage. [ 117 ] The Crown must establish two elements beyond a reasonable doubt to obtain a designation of dangerousness as a result of violent behavior. First, the offence for which the offender has been convicted and is being sentenced must be a “serious personal injury offence” as defined in s. 752.

Second, the offender must represent a “threat to the life, safety or physical or mental well-being of other persons”: Boutilier , paras 17, 18 . [ 118 ] In assessing the threat posed by the offender, the Court must consider whether the predicate offence is part of a broader pattern

of violence; whether there is a high likelihood of harmful recidivism; and whether the violent conduct is intractable: Boutilier, para 26confirming R v Lyons, (SCC), [1987] 2 SCR 309 [Lyons]. Intractable conduct is behavior that the offender is unable tosurmount: Boutilier, para 27. [119] Evidence of future treatment prospects is relevant at both the designation and penalty stages: Boutilier paras 42-45.

This ensuresthat only those offenders who pose a “tremendous future risk” are designated as dangerous facing an indeterminate sentence: Boutilier,para 46. [120] If the dangerous offender criteria are not met, the Court may sentence the offender for the predicate offence or consider whetherto impose a long-term offender designation: s. 753(5); R v Montgrand, 2017 SKCA 49, 352 CCC (3d) 485 [Montgrand]. Dangerous Offender Analysis [121] The criteria for determining whether to designate a person as a dangerous offender will be considered as follows.

Serious personal injury offence and pattern of violent behaviour [122] Mr. L.P. has been convicted of assault causing bodily harm contrary to s. 267(

b) of the Criminal Code. The predicate offenceinvolved the use of violence against Mr. L.P.’s intimate partner, as described earlier in this decision. As the Crown proceeded byindictment, the maximum sentence is 10 years in jail. I find Mr. L.P. has been convicted of a serious personal injury offence as definedin s. 752(a)(i). This element of the dangerous offender designation has been met. [123] In assessing the threat posed by Mr.

L.P., the Court must consider whether there is evidence of a pattern of repetitive behaviourdemonstrating a failure to restrain and a likelihood of harmful recidivism or a pattern of persistent aggressive behaviour showing asubstantial degree of indifference regarding the reasonably foreseeable consequences to others: ss. 753(1)(a)(

i) and 753(1)(a)(ii) of theCriminal Code. In this case, the Crown did not rely on s. 753(1)(a)(iii) or s. 753(b). Because the subparagraphs in s. 753(1) aredisjunctive, they set out standalone grounds for finding that the offender is a “threat”: Boutilier, para 18. [124] There are two ways of identifying the pattern of behaviour in this context. There must be similarities in the types of offences orsimilarities in the degree or nature of violence used or threatened: R v Knife, 2015 SKCA 82, 460 Sask R 287 [Knife]; R v Neve, 1999ABCA 206, 137 CCC (3d) 97.

The pattern of behaviour and the predicate offence must be related and must be established on the basisof proven allegations: R v Pike, 2010 BCCA 401, 260 CCC (3d) 68 [Pike]. However, it is the repetition of violent behaviour whichforms the pattern, not the offences themselves: Knife, para 64; R v McCallum, 2016 SKCA 96; R v Wilton, 2016 SKCA 131. [125] In the present case, the predicate offence of assault causing bodily harm against an intimate partner forms part of a broaderspectrum of violent behaviour, which includes sexual and general interpersonal violence. [126] The degree of Mr.

L.P.’s assaultive conduct varied from low to high, but all of it demonstrates a failure to restrain his behaviouroften due to impulsiveness and intoxication. Most of the sexual assaults were on the lower end of the range of comparable crimes,involving brief touching over clothing or bedding. One of the sexual assaults involved body to body touching. All of the sex assaultvictims were sleeping, and therefore vulnerable, when the offences occurred. The assault offences involved strikes with his hands and onone occasion, the use of a bottle of alcohol to the head of his victim.

The assault on a fellow inmate demonstrates Mr. L.P.’s failure torestrain himself even in a highly controlled setting. One assault arose out of a consensual fight in which Mr. L.P. went too far. Thepredicate offence involved continuing abuse even after the victim ceased resisting. Most victims were people known to Mr. L.P.,including family members. [127] Mr. L.P. did not cause death, but he did endanger the safety as well as the physical and mental well-being of his victims. [128] I find that the predicate offence forms part of a pattern of repetitive harmful acts indicating Mr.

L.P.’s past failure to control andrestrain his behaviour. Therefore, this element of the dangerous offender designation has been met. [129] Having found a pattern of behaviour demonstrating a failure to restrain, it is not necessary for me to consider other groundsunder s. 731(1). Nonetheless, I will make my finding regarding s. 753(1)(a)(ii). [130] I am not convinced that there is a pattern of persistent aggressive behaviour showing a substantial degree of indifference withrespect to the foreseeable consequences to others: s. 753(1)(a)(ii).

In reaching this conclusion, I have considered the subjective state ofmind of Mr. L.P. as well as the objective evidence at this hearing: Montgrand, para 21. [131] Indifference is not to be determined only at the time of the offence. Rather, the point is to identify the “truly evil personalitytype who has no compassion for others at any time”: R v George (1998), (BC CA), 126 CCC (3d) 384 at para 23 (BCCA) [George]. The evidence must demonstrate that the offender “had a conscious, but uncaring, awareness of causing harm to others”:George, para 24. [132] At the time of the offences, Mr.

L.P. appears to have been indifferent to the consequences for himself and his victims. For yearsafter, he minimized the nature of his offending behaviour or blamed others for it. However, Dr. Lohrasbe and Dr. Nicholaichuk,observed a marked change in Mr. L.P. between their first and second interviews with him. They both concluded that Mr. L.P. has gainedinsight into the harm he has caused. According to Dr. Lohrasbe, he expressed genuine pain and empathy for his victims and remorse forhis actions. There is no evidence to suggest Mr.

L.P. possesses a truly evil personality type or that he has never expressed compassion forothers: George. Therefore, I cannot conclude that he has remained indifferent to the consequences of his offending behaviour. Likelihood of harmful recidivism and intractability [133] The focus of the inquiry at this point is whether Mr. L.P. poses a future threat. The Court must consider whether the pattern ofMr. L.P.'s conduct which endangers the life, safety or physical well-being of others is very likely to continue: Lyons, p. 338. Determining

if a high risk of recidivism is present requires a prospective inquiry into whether an offender will continue to be a "real and present danger to life or limb": Boutilier , para 35 . The Crown must demonstrate beyond a reasonable doubt the high likelihood of harmful recidivism: Boutilier ; R v Parfitt , 2019 SKCA 55 at para 65 , 378 CCC (3d) 490 [ Parfitt ]. [ 134 ] The pattern of repetitive behaviour must show a likelihood or probability that death, injury or severe psychological damage will occur as a result of the offender's failure in the future to restrain his behaviour: Montgrand , para 10 .

The Court must assess whether there is a connection or link between the predicate offence, the pattern of offending behaviour and the future threat: Pike , paras 68, 80- 83 . [ 135 ] The Court must also be satisfied that the pattern of conduct is substantially or pathologically intractable: Lyons , p. 338, cited with approval in Boutilier at para 26 . This involves a prospective assessment of risk and the viability of future treatment. The Crown is required to demonstrate beyond a reasonable doubt the intractability of the violent pattern of conduct: Parfitt , para 65 . [ 136 ] According to Dr. Lohrasbe, Mr.

L.P. poses a high risk for violence in the foreseeable future, due to mental instability, substance abuse and lack of self-regulation if he remains untreated. Mr. L.P.’s diagnoses place him at the milder end on the spectrum of schizophrenia disorders. [ 137 ] Dr. Nicholaichuk was of the view that Mr. L.P.’s mental disorders, in and of themselves, did not contribute to his violence or criminal risk. However, when paired with substance abuse, the level of risk increased dramatically. When substance abuse is managed, the criminal risk and risk of violence tends to decline significantly. [ 138 ] Mr.

L.P.’s score on ODARA, the domestic assault risk assessment, was reported as high in the pre-sentence report. However, Dr. Lohrasbe was of the view that the predicate offence of domestic assault was not indicative of an escalation in the degree of violence which could be expected from Mr. L.P.. [ 139 ] Neither Dr. Lohrasbe nor Dr. Nicholaichuk assessed Mr. L.P. as having a sexual deviancy. Although Mr. L.P. has committed sexual offences in the past and exhibited bizarre sexual behaviours while in custody, Dr. Lohrasbe was of the opinion that Mr.

L.P.’s sexual violence is attributed to lack of self-regulation rather than to a specific deviance. It was Dr. Lohrasbe’s expectation that as his general behaviour improves with treatment, Mr. L.P.’s sexual aggression will decline. [ 140 ] Dr. Nicholaichuk concurred with this opinion and was of the view that Mr. L.P.’s risk of committing new sexual offences was very low. I note that Mr. L.P.’s last sexual assault was committed in 2004. [ 141 ] Based upon the evidence, I conclude that if Mr.

L.P. is to overcome his offending behaviour, he will need to address his mental disorders, substance abuse and lack of self-regulation. The availability of appropriate treatment and his willingness to cooperate with that treatment are key. In particular, the expert testimony made it clear that his diagnoses require psychiatric treatment including psychotropic medication. As important is Mr. L.P.’s ability and willingness to refrain from use of alcohol and substances. [ 142 ] Both experts reported an improvement in Mr. L.P.’s understanding and appreciation of his need for intensive treatment. According to Dr.

Nicholaichuk, Mr. L.P. is now prepared to contemplate change and to look for assistance in that regard. [ 143 ] I accept Dr. Lohrasbe’s evidence that with Mr. L.P.’s cooperation a comprehensive treatment plan with extended follow up can effectively manage his risk in the community. [ 144 ] Of concern is Mr. L.P.’s testimony that he has a preference for traditional treatment over conventional medicine. However, he expressed his willingness to be treated by a psychiatrist, to take medication prescribed for him and to participate in relapse prevention for substance abuse. As such, I accept Dr.

Lohrasbe’s opinion that there is now reason for optimism. [ 145 ] Alcohol and substance abuse is a significant risk factor, exacerbating Mr. L.P.’s mental health issues. I accept Mr. L.P.’s testimony that he has maintained his sobriety while on remand for more than five years, even though intoxicants are available in correctional facilities. He took the initiative to lead AA meetings with fellow inmates until they were discontinued due to COVID-19. Dr. Lohrasbe was encouraged that Mr. L.P. had remained abstinent, recognizing it will be a challenge for him to do so when back in the community. To that end, Mr.

L.P. has connected with Mr. Montour of Mental Health and Addiction Services who can provide support as he transitions from custody to the community. He has also been working with the justice support workers at IJP to develop a release plan that includes in-patient and out-patient treatment. [ 146 ] Mr. L.P. has expressed a desire and commitment to participate in programming with IJP and related agencies.

He has remained engaged with a justice support worker from the FASD Network since July 2021, reaching out for additional support when needed and working toward establishing supports for future release planning. [ 147 ] According to Ms. Sorowski from IJP, Mr. L.P. seems determined to make positive changes in his life. She has observed Mr. L.P.’s development of future goals around living a sober life. The continued support of the FASD Network will assist in addressing Mr. L.P.’s complex needs. [ 148 ] Dr. Lohrasbe and Dr. Nicholaichuk noted positive developments regarding Mr.

L.P.’s insight into his offending behaviour, reflected in his genuine feelings of empathy and remorse. According to Dr. Nicholaichuk, such feelings of remorse will assist Mr. L.P. in regulating his behaviour in the future. [ 149 ] I accept the evidence that ageing is also a consideration in assessing whether Mr. L.P.’s offending behaviour will continue to pose a threat in the future. According to Dr. Lohrasbe, it is likely that the risk will decline as Mr. L.P. approaches his fifth decade. According to Dr. Nicholaichuk, as an individual ages, substance abuse becomes less associated with violence.

In addition, violent offending typically tends to decrease around 38 or 39 years. By the age of 50 years, recidivistic violent offending is very infrequent regardless of treatment. Mr. L.P. is now 42 years of age. Based upon ageing alone, his propensity for violence can be expected to diminish.

[ 150 ] It is positive that Mr. L.P. is reconnecting with his Indigenous identity. While on remand, he has been meeting with an Elder, and has participated in cultural activities offered in the institution. He has been consistent in recognizing the importance of participating in cultural activities as a means of healing. Dr. Nicholaichuk testified that such activities are associated with reduced recidivism. According to Dr. Lohrasbe, cultural and spiritual practices can promote deep and lasting changes. [ 151 ] Mr.

L.P. also has positive family support to assist him in continuing his treatment long-term. [ 152 ] Although Mr. L.P. has a poor record for non-compliance, he has shown some ability to function successfully in the community so long as he was closely supervised. Ms. Rogal suggested that the lack of availability of psychiatric services and violence prevention programming contributed to Mr. L.P.’s deterioration in 2017. According to Ms. Walker, Mr. L.P. was able to positively engage with a therapist and achieve some success in the community. [ 153 ] I am also mindful that there was a significant gap in Mr.

L.P.’s violent offending. Prior to the predicate offence, his last violent offence occurred in 2010, seven years earlier. [ 154 ] I accept the evidence of Dr. Lohrasbe and Dr. Nicholaichuk that Mr. L.P. is now more interested in solving his many personal problems and seeking medical help and treatment. Accordingly, it would be premature to conclude that Mr. L.P. is not treatable. [ 155 ] Taking into account Mr. L.P.’s pattern of offending, the nature of the predicate offences, the risk assessments, as well as the opinions of Dr. Lohrasbe and Dr. Nicholaichuk, I conclude there is a high likelihood of Mr.

L.P.’s harmful recidivism in the future, if he remains untreated. I accept that the likelihood of his risk of harmful recidivism for sexual offences is low. [ 156 ] However, I am satisfied that Mr. L.P. has not only expressed, but has also demonstrated, his intention to fully participate in treatment going forward.

He has taken positive steps toward addressing his risk factors and overcoming his offending behaviour by maintaining sobriety, regaining his Indigenous identity, engaging with community supports, appreciating the impact of his violent conduct on others, accepting his need for treatment, and indicating a willingness to submit to the care of a psychiatrist and to take medication. These factors, combined with family support and the passage of time as Mr.

L.P. ages, will reduce the risk of harmful recidivism and contribute to his ability to overcome his offending behaviour [ 157 ] On the totality of the evidence, I find the Crown has failed to prove beyond a reasonable doubt that Mr. L.P. is unable to surmount his violent offending behaviour or that his pattern of conduct is substantially or pathologically intractable. Therefore, I am not satisfied beyond a reasonable doubt that Mr. L.P. actually constitutes a future threat to safety in light of the evidence.

Have the criteria for dangerous offender designation been established beyond a reasonable doubt? [ 158 ] The predicate offence is a serious personal injury offence. The evidence has established that the predicate offence forms part of a pattern of repetitive behaviour, indicating a failure of restraint on Mr. L.P.’s part. There is a high likelihood of harmful recidivism without treatment. However, for the reasons given, I am not convinced that Mr. L.P. is unable to surmount his violent behaviour. [ 159 ] Therefore, I am not satisfied beyond a reasonable doubt that Mr.

L.P. actually poses a future threat to the life, safety or physical well-being of other persons. The statutory criteria have not been met to warrant Mr. L.P.’s designation as a dangerous offender. Long-term offender analysis (s. 753.1(1)) [ 160 ]

Part XXIV allows the Court to consider finding an offender to be a long-term offender if the Court finds the dangerous offender criteria are not met: s. 753(5) Criminal Code ; see also Montgrand . According to s. 753.1(1), in order to find Mr. L.P. to be a long-term offender, I must find that a sentence of two years or more is appropriate for the assault causing bodily harm; that there is a substantial risk of Mr. L.P. reoffending; and that there is a reasonable possibility of eventually controlling Mr. L.P. in the community.

Although not explicitly stated in s. 753.1(1), the risk must be with respect to reoffending violently: R v Piapot , 2017 SKCA 69 , 355 CCC (3d) 239. [ 161 ] The Court must balance the above factors, but neither party is required to meet a burden of proof. The Crown is not required to prove beyond a reasonable doubt that Mr. L.P. will not eventually be manageable in the community or that there is no reasonable possibility for eventual control of risk to the community: R v Moosomin , 2008 SKCA 169 at para 40 , 239 CCC (3d) 362; R v Keenatch , 2019 SKPC 38 at para 54 .

Is the appropriate sentence two years or more? [ 162 ] I am satisfied that a sentence of incarceration for two years or more is appropriate in this case. The maximum sentence for an assault causing bodily harm is 10 years. As previously described, the circumstances of the predicate offence in this case are serious, involving several acts over a prolonged period, even after the victim was subdued. Mr. L.P. has a history of assaultive behaviour, yielding sentences of 2 years or more.

He was bound by a s. 810.2 recognizance at the time. [ 163 ] Convictions for assault causing bodily harm result in a wide range of sentences. Similar cases where the sentence was two years or more include: R v Meyers , 2012 SKCA 98 , 339 Sask R 261 [ Meyers ]; R v C.M. , 2005 SKCA 124 , 269 Sask R 240 [ C.M. ]; R v Murphy , 2019 SKCA 8 , 374 CCC (3d) 538 [ Murphy ]. Is there a substantial risk Mr. L.P. will reoffend? [ 164 ]

Section 753.1(2) establishes a presumption that there is a “substantial risk” if the offender has been convicted of certain offences and has shown a pattern of repetitive behaviour that illustrates a likelihood of the offender causing death, injury, or severe psychological damage to others. The predicate offence need not be one listed in the section.

[165] When assessing the pattern of behaviour in the context of the long-term offender provisions, Barrington-Foote J (as he thenwas) held in R v Keepness, 2013 SKQB 441 at para 9, 435 Sask R 119 [Keepness], that there must be sufficient elements of similaritybetween each of the incidents of the offender’s behaviour, but the incidents need not amount to similar fact evidence. What is necessaryis a pattern sufficient to predict future behaviour. [166] In assessing whether or not Mr. L.P. is a dangerous offender, I concluded that Mr.

L.P.’s history demonstrates a pattern ofrepetitive assaultive behaviour of which the predicate offence forms a part. While none of his offending behaviour caused death, he didcause injury to others. His past assaultive conduct is sufficient upon which to conclude there is a likelihood he will reoffend causingphysical injury in the future. [167] I am satisfied that the evidence establishes that Mr. L.P.’s pattern of repetitive behaviour, including the predicate offence, issufficient to form a basis for finding that there is a substantial risk he will reoffend.

Is there a reasonable possibility of eventual control of the risk in the community? [168] In assessing whether there is a reasonable possibility of eventually managing Mr. L.P.’s risk in the community, the evidencemust establish more than an expression of hope that he will be treatable within a definite period of time; R v Otto, 2006 SKCA 52 at para20, 279 Sask R 182, citing R v M.(N.J.) (ON CA), 2005, 201 CCC (3d) 541 (Ont CA). However, a reasonablepossibility should not be confused with a reasonable expectation: R v Bunn, 2014 SKCA 112 at paras 37-38, 446 Sask R 184.

Controlling the risk does not mean completely eliminating the risk but rather reducing it to an acceptable level. [169] At this point, the Court must consider the nature and extent of the risk as well as the potential effectiveness of factors such asongoing monitoring and assessment, treatment, counselling, ageing, avoidance of triggers and supervision of the offender: Keepness,para 14. [170] There is a substantial risk that Mr. L.P. will reoffend violently, if he is not treated, though a low risk that he will commit sexoffences.

Although he has an extensive criminal record for violent and property offences, there have been gaps in his violent offendingbehaviour in the past. [171] It is fair to say that Mr. L.P. has a dismal history for non-compliance while being supervised in the community. He hasincurred numerous breaches of court orders and recognizances. Two conditional sentences were terminated. And, while beingsupervised, he committed the predicate offence. However, he did have some successes while working with Ms. Walker and Ms. Rogal.

The focus at this stage is assessing the possibility of managing his risk, going forward. [172] Dr. Lohrasbe recommends high intensity multifaceted programming for Mr. L.P. but not necessarily sexual offender treatment. Medication, along with a trauma informed approach to therapy will be required. Dr. Lohasbe recommended periodic reassessments ofhis treatment needs and repeat risk assessments to assist in planning the specifics for ongoing risk management. [173] Mr. L.P. appears willing to cooperate with those aspects of his treatment.

The changes he has made, including acknowledginghis psychiatric disorders and recognizing the need for treatment, will contribute to effective management of his risk in the future. [174] As such, I accept Dr. Lohrasbe’s opinion that if Mr. L.P. maintains his current willingness to take psychotropic medications andgenuinely engages in relapse prevention strategies for substance abuse, the prospect for effectively managing Mr. L.P. in the communityis greatly improved. Dr. Lohrasbe’s view was that with proper medication, Mr. L.P.’s psychotic symptoms could be eliminated withintwo to three months. [175] Dr.

Lohrasbe explained that Mr. L.P. is a different person now than when he participated in the Wellspring sex offenderprogram fifteen years ago. He concluded it would be overly pessimistic to assume that Mr. L.P. would inevitably fail in programming inthe future, as treatment often takes several rounds. [176] Dr. Nicholaichuk’s opinion was that Mr. L.P.’s risk could be managed in the community under the appropriate conditions. Hesuggested that supervision should be restrictive at first and then relaxed as he establishes trustworthiness and the ability to manage undercommunity conditions.

Adequate housing, employment and mental health resources will be key components of Mr. L.P.’s supervision. It was Dr. Nicholaichuk’s view that it is too early to assume Mr. L.P. cannot be managed because a community management strategydesigned to accommodate his many difficulties has not yet been attempted. Dr. Nicholaichuk stated that to have confidence in changedbehaviour, there needs to be demonstration of change for at least 18 months. [177] The expert evidence suggested that connection with culture and an Elder has a positive effect on an Indigenous offender’sability to stay in treatment. Mr.

L.P. has already developed an important relationship with an Elder. This should reinforce his resolve toremain in treatment once it has begun. [178] Mr. L.P. has demonstrated his commitment to sobriety. He has not consumed substances for the past five years while incustody. Based upon his history, the loss of loved ones and interpersonal problems have been triggers for relapse in the past. Accordingly, he will require intensive addictions programming and close supervision. If his addictions can be managed, so too can hispropensity for violence as they go hand in hand. His connection with Mr.

Montour from Mental Health and Addiction Services will beimportant. [179] It is encouraging that Mr. L.P. has remained engaged with IJP for almost one year at this point. He has established future goa

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