Her Majesty the Queen - v. -, 2013 SKPC 64

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 064 Date: March 13, 2013 Information: 43265525, 36878094 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Stewart Appearing: Buffy Rodgers For the Crown Bill Roe, Q.C. For the Accused PUBLICATION BAN: S. 486.4(1) Subject to subsection (2), the Court directs that any information that could identify the complainant or a witness shall not be published. JUDGMENT M.D.

IRWIN , J [ 1 ] On July 19, 2010 Robert Stewart was convicted that between the 1 st day of September, A.D. 2007 and the 20 th day of October, A.D. 2008 at or near Saskatoon, Saskatchewan he did:

(1) Sexually assault K.E. contrary to

section 271 of the Criminal Code .

(2) For a sexual purpose, touch, directly or indirectly, with a part of the body of with an object, to wit hands penis, a part of the body of K.E., a person under the age of fourteen contrary to

section 151 of the Criminal Code . [ 2 ] Prior to sentencing the Crown applied under

Part XXIV of the Criminal Code to have Mr. Stewart remanded to conduct an assessment by forensic psychologist Dr. Roger Holden for use as evidence in a dangerous offender hearing. [ 3 ] The Crown obtained the consent of the Attorney General and the matter was set down for a dangerous offender hearing which commenced at Provincial Court in Saskatoon on October 24, 2012 wherein the Crown called five witnesses, including Dr. Roger Holden. No witnesses were called on behalf of the Defence. [ 4 ] The Crown asked the Court to declare Mr.

Stewart a dangerous offender while defence submitted that if the Court found that Mr. Stewart met the criteria set forth in the Application by the Attorney-General, Mr. Stewart should be declared a long-term offender. Issues 1. Has the Crown established that Mr. Stewart is a dangerous offender within the meaning of s. 753(1) of the Code or should he be sentenced as a long-term offender? 2. If Mr. Stewart is declared a long-term offender, what is the appropriate sentence? Applicable Legislation [ 5 ]

Part XXIV of the Criminal Code which addresses dangerous offender sentencing was amended on July 2, 2008 by the Tackling Violent Crime Act . An important change to

Part XXIV was the amending of section 753(1) to direct that a Court “ shall ” find an offender to be “ dangerous ” once the statutory criteria are met rather than “ may ” find an offender to be dangerous. Prior to the amendment a sentencing judge had discretion to decline to impose Dangerous Offender designation despite determining that the statutory criteria had been met. [ 6 ] Mr. Stewart ’ s offences straddle the amendment date occurring September 1, 2007 and October 20, 2008. It was agreed by both the Crown counsel and Defence counsel that the legislation in effect prior to July 2, 2008 should apply.

This is consistent with the reasoning of Quinlan J. in R. v. Hardy , 2012 CarswellOnt 13427 . [ 7 ] At paras. 227 - 229 Mr. Justice Quinlan explained: 227

Section 11(

i) of the Canadian Charter of Rights and Freedoms , [FN11] provides that if the punishment for an offence has been varied between the time of commission and the time of sentencing, the offender has the benefit of the lesser punishment. 228 I accept the position of the defence and find that the old regime is more favourable to Mr. H. First, it provides me with the discretion not to declare Mr. H. dangerous.

Second, under the new regime, I must impose a sentence of detention for an indeterminate period unless I am satisfied that there is a reasonable expectation that a lesser measure, such as a determinate sentence with an LTSO or a determinate sentence, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

229 No cases have been provided to me where the offence dates straddle the amendment date. Because Mr. H. would have the benefit of the lesser punishment at the commencement of the timeframe covered by the indictment, and for the reasons outlined, I am satisfied that this proceeding should be determined on the basis of the old regime. Criminal Code Sections Pre-July 2, 2008 [ 8 ] The relevant portions of the Criminal Code sections are as follows: 752 “ 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 upon another person and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

Section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party of causing bodily harm) or 273 (aggravated sexual assault) . . . . . . S. 753(1) The Court may, on application made under this Part following the filing of assessment report under subsection 752.1(2), find the offender to be a dangerous offender if 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 that expression in s. 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

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

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

b) of the definition of that expression in

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

(4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period;

(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 . . . . S. 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 re-offend; and, (

c) there is a reasonable possibility of eventual control of the risk in the community.

(2) The Court shall be satisfied that there is a substantial risk that the offender will reoffend if (

a) the offender has been convicted of an offence under

section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography),

section 172.1 (luring a child), subsection 173(2) (exposure) or

section 271 (sexual assault), 272 (sexual assault with a weapon), 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and (

b) the offender (

i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that show a likelihood of the offender ’ s causing death or injury to other persons or inflicting severe psychological damage on other persons; or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

(2) Subject to Subsections (3.1), (4), (5), if he court finds an offender to be a long term offender, it shall (

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

b) order the offender to be supervised in the community, for a period not exceeding 10 years, in accordance with

section 753.2 and the Corrections and Conditional Release Act .

(4) . . . (5) . . .

(6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted. [ 9 ] As outlined above,

section 753 sets out the reasons for which an offender may be found to be a dangerous offender in which case an indeterminate sentence is imposed.

Section 753.1 outlines when a person who might otherwise qualify for a dangerous offender designation might be sentenced as a long-term offender based upon a finding by the sentencing judge that there is a reasonable possibility of eventual control of the risk presented by the offender in the community. If the offender is found to be a long-term offender the court imposes an appropriate sentence but also orders that the offender be supervised in the community following his release for a period not to exceed 10 years.

Criminal Record of Robert Stewart [ 10 ] The criminal record of Robert Stewart reveals 31 convictions in 18 criminal categories including 12 alcohol related driving offences. His first criminal conviction occurred at the age of 18 years on May 26, 1987 when, as a youth, he committed the offence of incest, involving intercourse with his 15 year old sister.

He was sentenced to one year on probation. [ 11 ] On November 13, 1987 in Brandon, Manitoba he was convicted of failure to provide a breath sample, breach of probation, mischief, driving with a blood alcohol content greater than 80 milligrams in 100 millilitres of blood and a failure to appear in court. He received a two month jail sentence on all charges and a three year driving prohibition. He was also convicted of Manitoba provincial offences including driving without a license, driving while suspended and open liquor in a vehicle.

His total criminal and provincial offence sentence totalled four and a half months. [ 12 ] On June 13, 1988 he was convicted of break, entering and committing sexual assault for which he received a three year federal sentence and a five year firearm prohibition order. At the time of the offence Mr. Stewart was 19 years of age and still on probation for the 1987 incest charge. The offence occurred after Mr. Stewart had been consuming alcohol and hashhish. He entered the home of a 87 year old woman who resided a short distance from the Stewart residence.

Also in the residence was the 79 year old sister of the owner of the house. On the second level of the residence he found the two sisters, grabbed them and threw them on the bed. The 87 year old fell to the floor and was unable to get up. Mr. Stewart attempted to remove the shoes and pants of the 79 year old woman and stripped his own underwear off exposing his genitals. Fortunately family members who had been called by the sisters entered the home causing Mr. Stewart to flee. He was arrested three days later and confessed to the crime.

Members of the arresting RCMP detachment in the report indicated that he was remorseful and desired help for his sexual and alcohol problems. [ 13 ] On June 22, 1990 Mr. Stewart was released on mandatory supervision with a warrant expiry date of June 12, 1991. [ 14 ] In December, 1990 Mr. Stewart was charged with refusal to provide a breath sample and dangerous driving causing injury. On May 11, 1991 Mr. Stewart was found to have consumed alcohol and therefore was in breach of his mandatory supervision order. As a result, on May 13, 1991 the mandatory supervision order was suspended and Mr.

Stewart remained in custody until the expiration of his sentence on June 12, 1991. [ 15 ] On July 21, 1991 Mr. Stewart was charged with break and enter and commit assault. His vehicle broke down a short distance from a 30 year old female victim ’ s home. Having been drinking heavily he went to the door of the residence and became very angry when the occupant would not let him in the house. He then proceeded to the rear of the house and kicked the back door open. Fortunately the victim had called the neighbour and pushing past Mr. Stewart ran outside.

At that time of night she was wearing only a housecoat and had a cast on her foot. He began chasing her and tackled her to the ground. She managed to get up, but he caught her again. Picking her up he was carrying her back to her residence when her housecoat opened and he allegedly said, “ oh yeah ” . It was at that time that a neighbour appeared and Mr. Stewart fled the scene. He was arrested shortly thereafter and admitted to the offence. The victim suffered scrapes and bruises and a broken toe as a result of the assault. On October 8, 1991 Mr. Stewart pled guilty to the charge and he was

sentenced to 30 months in a federal penitentiary. [ 16 ] On November 12, 1991 he was sentenced to 90 days in prison consecutive to the 30 month sentence. Again this charge was for failing or refusing to provide breath samples. [ 17 ] Mr. Stewart was released on statutory release on August 10, 1993. [ 18 ] Unfortunately by December 28, 1993 Mr. Stewart had breached his statutory release conditions by failing to abstain from alcohol. Additionally he was charged with dangerous driving, impaired driving and driving while disqualified.

These offences resulted in a total sentence of five months to be served consecutive to then current federal sentence. His statutory release date then became August 24, 1994 and his new warrant expiry date became December 3, 1994. [ 19 ] Again, by November 21, 1995 Mr. Stewart was again charged with driving while disqualified and possession of property obtained by crime over $5,000.00. His total sentence on the two counts was a fine of $1,000.00 and probation for one year. [ 20 ] On June 11, 1996 Mr.

Stewart was convicted of sexual assault and sentenced to ten months incarceration followed by probation for two years. The unfortunate victim was a 15 year old female. Mr. Stewart was a friend of the family and had been staying at the young girl ’ s residence. He entered her bedroom in the middle of the night and began to caress her. Alarmed she called out and her mother entered the room and promptly ejected Mr. Stewart from the residence. On August 24, 2000 Mr. Stewart, after pleading guilty to the sexual assault, was sentenced to 11 months in jail and a five year driving prohibition.

This sentence resulted from the sexual assault and another impaired driving, refusal to provide a breath sample, flight and breach of recognizance. He was released from jail on April 3, 2001. [ 21 ] Mr. Stewart was convicted February 20, 2002 at Carlyle, Saskatchewan for driving with a blood alcohol over .08, dangerous operation of a motor vehicle and fail to attend court. At that time he received a total sentence of 90 days for all offences and in addition a five year driving prohibition. [ 22 ] In Brandon, Manitoba on May 24, 2002 Mr.

Stewart was convicted on three criminal charges, namely, theft of a motor vehicle, failure to comply with a recognizance and failure to attend court. Mr. Stewart had stolen the motor vehicle in Boissevain, Manitoba on January 13, 2000 and then abandoned the vehicle in Saskatoon on January 19, 2000. The Probation Order issued at that time included a condition that Mr. Stewart was to attend and participate and complete sexual offender and other counselling or treatment as directed by his probation officer. [ 23 ] On February 11, 2003 Mr.

Stewart pled guilty and was sentenced to a 12 month conditional sentence order for being found in possession of stolen property and failure to comply with his previously imposed probation order. On September 24, 2003 he pled guilty to driving while disqualified and obstructing a peace officer. As a result he was sentenced to a further four month conditional sentence order including electronic monitoring. [ 24 ] On September 15, 2006 Mr.

Stewart was charged with impaired driving and pled guilty to the charge and was sentenced to a 12 month conditional sentence order and prohibited from operating a motor vehicle for two years. [ 25 ] Mr. Stewart was convicted of the predicate offence on July 19, 2010 “ that he did between the first day of September, A.D. 2007 and the 20 th day of October, A.D. 2008 sexually assault K.E. ” and “ for a sexual purpose did touch the body of K.E., a person under the age of 14 ” . This sexual abuse occurred while Mr. Stewart was living with K.E. ’ s mother.

In addition to the sexual assault charge an emergency intervention order was put in place to prevent contact with K.E. and her mother. Mr. Stewart had fled the province and was not arrested until September 29, 2009. Evidence

[ 26 ] The Defence called no evidence. [ 27 ] The Crown called five witnesses, including Dr. Holden, who performed the forensic assessment of Mr. Stewart pursuant to the order of the court. The Crown ’ s witnesses provided evidence regarding Mr. Stewart ’ s prior criminal convictions and testified about Mr. Stewart ’ s institutional behaviour as well as the availability of programming for dangerous and long-term offenders. Evidence of Violet Harris-Tomlyn [ 28 ] Violet Harris-Tomlyn, a probation officer, advised that she had worked with Mr.

Stewart from September 2006 to 2007 during his most recent 12 month conditional sentence order. Ms Tomlyn testified as to Mr. Stewart ’ s childhood life growing up in a dysfunctional family with alcoholism, sexual abuse and violence. She conducted a risk assessment in late 2006 which indicated Mr. Stewart was a high risk to reoffend. She worked with him to lower his risk by referring him to Addiction Services and personal counselling and stable employment. She also noted that he had had prior programming including stress management and sex offender treatment. While she knew Mr.

Stewart had not completely abstained from alcohol during this period, Ms. Harris-Tomlyn noted he appeared to be doing well as he reported as directed and did not incur any new charges. Evidence of Kerry Lafrenier [ 29 ] Kerry Lafrenier, an Assistance Director of Programming for medium security offenders at the Saskatoon Correctional Centre testified that he supervised Mr. Stewart while the offender was on remand at the unit for three years, beginning in 2009. He testified that Mr. Stewart had remained on medium security and other than some minor behavioural issues, Mr.

Stewart ’ s behaviour had been generally unremarkable and there had not been any problems with violence. Mr. Lafrenier advised the court that Mr. Stewart was employed as a Janitor in the institution and had demonstrated positive behaviour on the unit. Mr. Lafrenier further testified to the limited availability of programming at the Correctional Centre, including lack of sex offender programming and AA (on that Unit). He advised that Mr. Stewart had participated in GED programming and the Chaplaincy program.

Evidence of James Gonzo [ 30 ] James Gonzo, the Regional Segregation Oversight Manager for the Prairie Region Correctional Services Canada testified that he had been employed with CSC since 1998 developing programming for inmates. He testified as to correctional plans for those with Dangerous Offender designations as well as parole eligibility and security classification.

Evidence of Leanne Skene [ 31 ] Leanne Skene who had worked as Program Manager at Saskatchewan Penitentiary from 2004-2011 supervising the delivery of programs testified as to the different programming available at the Penitentiary, including violence prevention programs, one-on-one counselling for sex offenders, as well as both high intensity and moderate intensity sex offender programming. She indicated that over the last few years, the moderate intensity classes had not reached capacity and space was often available.

Ms Skene also testified as to the Substance Abuse programming available and indicated that as with all programming, offender placement was based on release dates. Evidence of Dr. Holden [ 32 ] Dr. Holden, a forensic psychologist with over thirty years experience working with violent offenders, testified as an expert witness for the Crown. He has performed over sixty assessments for dangerous offender hearings for the Province of Saskatchewan, including the forensic report on Mr. Stewart dated August 6, 2011. Dr.

Holden was qualified as an expert to give opinion evidence with regard to the assessment and treatment of violent offenders including the assessment of risk. The Crown submitted Dr. Holden ’ s assessment of Mr. Stewart as viva voce evidence in this dangerous offender hearing (Exhibit P-20).

[ 33 ] Dr. Holden interviewed Mr. Stewart on two separate occasions in July, 2011 at the Saskatoon Correctional Centre. In the six hours he spent with the offender, Dr. Holden obtained a detailed psychosocial history and conducted psychological testing on Mr. Stewart. In preparing his report, Dr. Holden reviewed a number of pre-sentence reports, correctional facility reports and other documents in order to reach a conclusion as to whether or not be believed Mr. Stewart to be a Dangerous or Long-Term Offender within the meaning of the statutory requirements. [ 34 ] Dr.

Holden conducted a battery of psychological tests, testing on such factors as intelligence, personality, alcoholism, aggression and hostility, hostility towards women, and sexual deviancy. Dr. Holden determined that Mr. Stewart was operating within the average level of mental development. He also conducted a risk assessment and administered the SVR-20 (the Sexual Violence Risk Scale), a structured clinical instrument consisting of factors that should be considered in any minimally comprehensive sexual violence risk assessment. Based on these factors, Dr. Holden concluded that the risk assessment suggested Mr.

Stewart was at a high risk to commit sexual violence in the future if he did not commit himself to actively participate in high-intensity sex offender treatment; substance and anger management programming; and relapse prevention techniques (should he be released in the community). While Dr. Holden felt Mr. Stewart met the criteria under

section 753(a)(i),(ii) and (b), he did not feel that Mr. Stewart was completely untreatable. In concluding that he believed there was a chance of eventual control of Mr. Stewart ’ s behaviour in the community, Dr. Holden suggested Mr. Stewart be considered a long-term offender. Given the depth of Dr. Holden ’ s report, I will summarize Dr. Holden ’ s assessment in further detail. [ 35 ] Dr. Holden was of the view that Mr.

Stewart presented as a typical, untreated sex offender who appeared to be in denial regarding the perpetration of his index offences and that the frequency of any future assaults would be dependent upon the offender coming to terms with the aetiology of his offending behaviour and in making decisions to significantly moderate his impulsiveness to act in sexually deviant ways. However, Dr. Holden indicated that it was speculative to attempt to predict the severity of Mr.

Stewart ’ s future sexual predation and that as his previous convictions did not appear to have caused significant physical harm, one could speculate that future assaults might well follow that pattern. [ 36 ] Dr. Holden indicated that in many ways, he felt Mr. Stewart presented rather well and would be able to benefit from the kind of cognitive behavioural programs provided by the Correctional Service of Canada. He also concluded Mr. Stewart would need to invest in institutional-based programming and have a long-term commitment following release to community based programming.

If released in the community, it was Dr. Holden ’ s view that Mr. Stewart have a sincere commitment to maintaining sobriety, suggesting that frequent random urinalysis testing could be appropriate while under parole supervision. Further, failure to address his anger towards women and learn alternative ways of coping would, in Dr. Holden ’ s view, exacerbate Mr. Stewart ’ s potential for future sexual violence. [ 37 ] A personality test administered by Dr. Holden revealed the negative impact alcohol and drug use had had on Mr.

Stewart ’ s life and testing responses suggested he had “ a history of antisocial behaviour and may have manifested a conduct disorder during adolescence ” (Exhibit P-20, p. 24). Further, Mr. Stewart ’ s response to the Western Personality Inventory indicated a 99% probability that he was an alcoholic. Dr. Holden noted: The respondent ’ s interest in and motivation for treatment is typical of individuals being seen in treatment settings, and he appears more motivated for treatment than adults who are not being seen in a therapeutic setting.

His responses suggest an acknowledgment of important problems and the perception of a need for help in dealing with these problems. He reports a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. However, the nature of some of these problems suggest that treatment would be fairly challenging, with a difficult treatment process and the probability of reversals (Exhibit P-20, p. 26). [ 38 ] According to Dr. Holden, Mr.

Stewart ’ s responses to testing on anger and hostility if valid suggested an individual with clinically significant levels of anger and hostility in general and clinically significant levels of hostility towards women in particular (Exhibit P-20, p. 28). However, testing on Mr. Stewart ’ s sexual attitudes suggested an individual with a strong sense of what is sexually appropriate behaviour both towards adults and children. [ 39 ] In administering the Sexual Violence Risk Scale-20, a tool for predicting an offender ’ s risk of future sexual predation, Dr.

Holden examined various factors which lead him to conclude Mr. Stewart was a high risk to reoffend sexually.

[ 40 ] Dr. Holden assessed sexual deviation which is a stable pattern of sexual arousal to inappropriate stimuli, noting Mr. Stewart ’ s criminal record, including index offence, contained five convictions in four criminal categories for sexual assault. He concluded Mr. Stewart had engaged in sexually deviant behaviour and on that basis he was a high risk to commit a sexual crime in the future. [ 41 ] Dr. Holden also looked at Mr. Stewart ’ s history of being a victim of child abuse, which he noted was a general risk factor for criminality, non-sexual and sexual violence. Dr. Holden noted Mr.

Stewart ’ s history of physical and sexual abuse in the family home, his repeated moves and difficulty integrating into different schools because of his Aboriginal background. [ 42 ] In assessing psychopathy, another risk factor for criminality and violence, Dr. Holden concluded that Mr. Stewart had generated a moderate total score, suggesting he possessed some of the antisocial features of psychopathy. He further concluded that Mr. Stewart was not suffering from a major mental disorder and that this factor could not be taken into consideration when assessing his risk for future sexual violence. Dr.

Holden observed that Mr. Stewart possessed a chronic and untreated substance abuse problem and had probably had some difficulty with intimate relationships which has some bearing on his potential to commit sexually violent crimes in the future. [ 43 ] Dr. Holden also noted that recent work performance reviews of Mr. Stewart suggested an improved work performance. Mr. Stewart had no convictions for non-sexual violent offences however the Break, Enter and Commit conviction involved the assault of the victim who received a broken toe as a result, in addition to other injuries.

The lack of history of past serious non-sexual violent offences was held by Dr. Holden to have “ some bearing ” on his potential to commit sexual violence in the future. However, Mr. Stewart ’ s history of non-violent offences, continued to put him at a high risk to reoffend. [ 44 ] Also increasing his risk of re-offence were Mr.

Stewart ’ s several supervision failures including three failures to Provide a Sample, two failures to Comply with a Probation Order, two failures to Appear, two failures to comply with a Recognizance and one failure to Attend Court. [ 45 ] In assessing the factor of multiple sex offence types, Dr. Holden advised that people who have committed multiple types of sex offences were at an increased risk for recidivistic sexual violence. Dr. Holden noted that the victim in Mr. Stewart’s 1987 incest conviction was his sister and in the 1988 sexual assault, an elderly female.

The victim in the 1996 conviction was a young girl and in the index offence, his very young step-daughter. Dr. Holden wrote: In interview, Mr. Stewart suggested that the incest offence was at least, to some extent, consensual and there were no apparent psychical injuries sustained, although he did admit to forcing his sister into sexual behaviour. In the 1988 conviction, Mr. Stewart threw the victim on to the bed but there were, apparently, no major physical injuries sustained. In the 1996 conviction, Mr.

Stewart tried to pry the legs of his victim apart but there were no indication of any further physical injuries. There did not appear to have been any major physical injuries sustained by Mr. Stewart ’ s victim in the index offences (Exhibit P-10, p. 41). [ 46 ] Mr Stewart ’ s potential for future sexual violence was determined to be high based on the fact he had committed multiple types of sex offences. The fact that the offender probably perpetrated some physical harm on at least one of his victims (throwing the elderly woman on the bed) led Dr. Holden to conclude based on this factor Mr.

Stewart was a moderate risk to re-offend. [ 47 ] Dr. Holden noted the 14 year gap between the commission of Mr. Stewart ’ s last sexual assault in 1996 and his index offence and determined there did not appear to be an escalation in the frequency of Mr. Stewart ’ s sexual offending however held that the offence represented a significant escalation in severity of the assault given that he was convicted of assaulting a very young girl on at least 25 occasions. [ 48 ] While Mr. Stewart had been quite forthcoming regarding his culpability in the incest conviction, Dr.

Holden observed he seemed to be in absolute denial regarding the index offences and believed he was the victim of a spiteful and vindictive former partner (Exhibit P- 10, p. 43). Dr. Holden concluded that he did not believe Mr. Stewart possessed much insight into the aetiology of his sex offending behaviour and appeared to be in significant denial regarding his culpability for his index offending. Dr. Holden felt Mr. Stewart exhibited anti-authoritarian behaviour and that his file suggested a highly impulsive individual who engages in both opportunistic and instrumental sexual offending behaviours.

[ 49 ] In assessing Mr. Stewart’s release plan, Dr. Holden concluded there were aspects of Mr. Stewart’s plan that were realistic as he appeared able to financially look after himself, had some indication of a need to address anger, however his plan to address his substance abuse suggested denial of the seriousness of his problem. Dr. Holden also commented on Mr. Stewart’s suggestion of “new found anger” as a result of what Mr.

Stewart considered his own victimization at the hands of former partners and various lawyers and stated: Again, given he has participated in anger management courses, one might opine he should have been able to connect his sexual behaviour with his mood states and formulate a more detailed plan, involving both institutional and community programming. He has amassed several convictions for sexual assault. He suggests his sex offender programming had been “highly successful.” Given his subsequent conviction, one might opine his opinion is flawed.

Given the seriousness of his sexual deviancy and that he had been asked to attend RPC to begin to address it several years ago, one might opine he should have recognized he has a serious sexual deviancy problem, which urgently needs intensive intervention (Exhibit P-10, p. 46). [ 50 ] Dr. Holden also looked into several different types of programming Mr. Stewart had been involved in during previous incarcerations.

A report generated in 1989 suggested he had been interviewed for the Sex Offender ’ s Program at RPC but later decided he was not interest in attending due to concerns about his safety while in Drumheller institution. A report from 1993 suggested he had been involved in minimal programs in the Institution and the two programs he had taken “ brings into question the benefit derived from them. After completing the Mood Altering Drug Program the Unit staff found brew in his cell ” (Exbihit P10, p. 47). Mr.

Stewart also ceased continuing in a Psychotherapy Group after one or two sessions following denial of his parole. In 1993 it was also suggested he completed the Anger Management Program and Breaking Barriers and reported he was studying on his own in A.A. There was some suggestion Mr. Stewart was making progress in 1994 with a psychologist and required psychological intervention to deal with his dysfunctional upbringing, lack of social skills, low level of education and relationships (Exhibit P-10, p. 47). [ 51 ] Regarding programming, Dr.

Holden concluded: In reviewing interview and file material, it seems to me that Mr. Stewart has participated in various kinds of programs designed to address his perceived criminogenic needs over the past twenty years or so with limited success. It appears he has long recognized the influence of alcohol abuse on his criminal behaviour but he still was receiving convictions for alcohol related offences as recently as five years ago. I conclude that, in regards to alcohol abuse, programs have had little or no effect upon Mr. Stewart ’ s ability to refrain from drinking.

In my opinion, this can be partially explained by what appears to be significant denial on Mr. Stewart ’ s part of the extent of his own alcohol abuse. Similarly regarding sex offending programming, he does not appear to have been involved in the kind of programming he was identified as needing over twenty years ago. He suggested in interview that he had taken sex offender programming and was quite prepared to take a “ refresher ” . He appears to be somewhat aware of the need for anger management programming, which has been part of his correctional plan in the past. According to test results, Mr.

Stewart has clinical levels of anger and clearly requires, in my opinion, high intensity programs in anger management. There is no doubt that unresolved anger issues have strong connections with sex offending behaviour … Previously, he appears to have been involved in programming as a matter of expediency and when such involvement did not produce the required results, he quickly dropped out.

He appears more invested in participating in programs while in the community and in reviewing his file, the programs he has taken do not appear to have been successful in addressing his admitted alcohol abuse, his impulsivity or his potential for perpetrating sexual crimes. I conclude Mr. Stewart has negative attitudes towards intervention in terms of dropping out of programs and avoiding others which had been considered to be beneficial for him (for example, RPC). His apparent denial of the extent and seriousness of his problems militates against his committing to programming ” (Exhibit P-10, p.49).

Analysis of Issues Issue 1 : Has the Crown established that the accused is a dangerous offender within the meaning of s. 753(1) of the Criminal Code or should he be sentenced as a long-term offender? [ 52 ] In R v. Roberts 2007 SKQB 209 the Court, beginning at paragraph 6, summarizes some of the leading case law discussing the dangerous and long-term offender regime:

6 The Supreme Court of Canada in the case of R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, established the framework that a courtis to follow when deciding whether to sentence an accused as a dangerous offender or a long-term offender. In that case, the Court statedat paras. 44-45: 44 As we have discussed, a sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if,and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to anacceptable level.

The introduction of the long-term offender provisions expands the range of sentencing options available to a sentencingjudge who is satisfied that the dangerous offender criteria have been met. Under the current regime, a sentencing judge is no longer facedwith the stark choice between an indeterminate sentence and a determinate sentence. Rather, a sentencing judge may consider theadditional possibility that a determinate sentence followed by a period of supervision in the community might adequately protect thepublic.

The result is that some offenders who may have been declared dangerous under the former provisions could benefit from thelong-term offender designation available under the current provisions. 7 The Saskatchewan Court of Appeal in the case of R. v. Lemaigre, 2004 SKCA 125, 254 Sask.

R. 255, also summarized the law inSaskatchewan following the Johnson decision supra, as follows, at para. 15: 15 Hence, on a dangerous offender application, the sentencing judge, before sentencing a person to an indeterminate period ofimprisonment as a dangerous offender, must suitably consider the alternative, namely sentencing the person as a long-term offender to adeterminate period in prison followed by a period of community supervision: R. v. Johnson (J.J.),2003 SCC 46 , [2003] 2 S.C.R.357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161.

And in keeping with Johnson it is incumbent upon the judge, when consideringthe alternative, to bear in mind that Parliament intended the sentence reserved for dangerous offenders to apply only to that very smallgroup of offenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventivedetention. 16 The corollary of this is that the sentence reserved for long-term offenders, the lesser of the two, is meant for that much broader groupof offenders whose risk of re-offence, while exceptional, appears open to eventual control in the community by means of a term in prisonfollowed by a period of supervision in the community - supervision under such conditions as may serve to control the risk and reduce itto an acceptable level. 8 In a recent Saskatchewan Court of Appeal decision R. v.

Otto, 2006 SKCA 52, [2006] S.J. No. 303 (QL), the Saskatchewan Court ofAppeal adopted a standard of assessment of the acceptable level of reduction of risk as set out by the Ontario Court of Appeal in the caseof R. v.

McCallum (2005), (ON CA), 201 C.C.C. (3d) 541 in which the Court stated: [47] Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and theamended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-termoffender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specificoffender can be treated within a definite period of time: ... the basic purpose of the dangerous offender provision before the 1997amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s.753.1(1)(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. ... 9 Accordingly, in order to determine whether the accused should be sentenced as a dangerous offender or a long-term offender I havereviewed the evidence presented to determine whether the accused can be treated while in custody such that if he is released from prisonthat treatment together with follow-up supervision can reduce his risk of re-offending to an acceptable level.

Dangerous Offender Finding [53] A Court may find an offender to be dangerous under s. 753 (1)(

a) if it is satisfied that the predicate offence is a serious personalinjury offence and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis ofevidence establishing: (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a

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

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

b) of thedefinition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in thecommission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and alikelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [54] In finding the offender constitutes a threat to the life, safety, or physical or mental well-being of others, the court need only find theCrown has proven Mr. Stewart’s behaviour satisfies one of the three subsections under s. 753(1)(

a) or alternatively s. 753(1)(b), which isonly employed in cases where the index offence is a sexual assault, as is the case here. [55] The Crown argues that the grounds set out in section 753(1)(a)(i), (ii) or section 753(1)(

b) been met in this case, whileDefence suggests without conceding that only section 753(1)(a)(

i) and section 753(1)(

b) apply. In undertaking a section 753(1) analysis,I am mindful of the great deal of case law providing guidance on dangerous and long-term offender applications and as summarized bythe courts in the more recent cases of R. v. Ben 2012 SKPC 52 (para 129) and R. v. Harris 2011 SKPC 176 (para 60), where some of thefollowing principles have emerged which are applicable to this hearing: 1. The Crown has the onus of proof beyond a reasonable doubt to establish that the offender fulfils the criteria in s. 753 (R. v.Ewenin, 2009 SKQB 207, para. 23; R. v. Natomagan, 2010 SKPC 7 at para. 56). 2.

The principles of sentencing contained in the Criminal Code, ss. 718, 718.1 and 718.2 must be considered by the Court (R.v. Johnson, 2003 SCC 46 at para. 23, [2003] 2 S.C.R. 357 and R v. Gamble 2012 SKQB 249). 3. Sentencing is an individualized process in which the trial judge has considerable discretion in fashioning a fit sentence. In thecase of a dangerous offender application, the focus must remain on the offender's own record, personal characteristics, and on theavailability of treatment and rehabilitation programs for the particular offender (R. v.

Merasty, 2011 SKPC 109, at para. 110; R. v.Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 (S.C.C.) at para. 82; R. v. Daniels, 2011 SKCA 67 at para. 19.) 4. The primary purpose of the dangerous offender legislation is the protection of the public (R. v. Johnson, 2003 SCC 46 at para.19; R. v. Ewenin, 2009 SKQB 207, para. 22). Recent amendments to the dangerous offender legislation "... have placed greater emphasison the primacy of the protection of the public.": R. v. J.E.M., 2011 BCSC 715 at para. 37. Serious Personal Injury Offence

[56] The first requirement under any of the Section 753(1) subsections is that the offence for which the offender has beenconvicted is a serious personal injury offence.

Section 752 of the Criminal Code defines a “serious personal injury offence” to include anoffence practiced in

Section 271 (sexual assault). Robert Stewart was convicted on July 19, 2010 of sexually assaulting K.E. contrary tosection 271 of the Criminal Code and thereby his offence meets the criteria for a dangerous offender application by the Crown. Threat to the Life, Safety or Physical or Mental Well-Being of Others [57] While I need only be satisfied that one of the criteria under s. 753(1) have been met, based on the evidence, and for the reasons thatfollow, I am satisfied that Mr. Stewart constitutes a threat to the life, safety or physical or mental well-being of others based on thecriteria set out in both section 753(1)(a)(

i) and (b).

i) Failure to Restrain Sexual Impulses—Section 753(1)(b) [58] Mr. Stewart was convicted of the predicate offence of the sexual assault of K.E, over a prolonged period of time. The repeatedoffending against K.E during that time period suggests a failure to control his sexual impulses. Additionally, the index sexual assault isthe fourth sexual offence Mr. Stewart has been convicted of since 1987, suggesting Mr. Stewart has a long history of failing to control hissexual impulses. In his assessment, Dr. Holden concluded Mr.

Stewart was a high risk to reoffend sexually violently in the future,assessing him as an individual who possessed “an unfortunate combination of a highly impulsive personality style, compounded by whatappears to be pathological levels of anger and an unresolved substance abuse problem, which results in his having perpetrated crimes ofsexual violence since his teenage years” (Exhibit P-10, p.51). [59] All of the sexual offences perpetrated by Mr. Stewart may be said to have caused pain, injury or other evil to the victims.

Mr.Stewart preyed on vulnerable elderly females and young girls, including a very young child. Undoubtedly his victims suffered severepsychological trauma and some physical harm. In perpetrating these crimes, Mr. Stewart violated both his position of trust and thevictims’ right to feel safe in their own homes. I am satisfied beyond a reasonable doubt there is a likelihood Mr. Stewart would causeinjury and pain or other evil to others through failure in the future to resist his sexual impulses. As such I find that the statutory criteriaunder section 753(1)(

b) have been made out. ii) Pattern of Behaviour—Section 753(1)(a)(i) [60] In considering section 753(1)(a)(i), I note that in finding a pattern of behaviour, Saskatchewan courts have made it clear thatgeneral similarity is sufficient and there need not be a lengthy history of violence or aggression for a pattern to be found. (R v. Ben 2012SKPC 52 at para 132; R. v. Casemore 2009 SKQB 306). Similarly, the Saskatchewan Court of Queen’s Bench in R. v. Bunn 2012 SKQB397, and the Alberta Court of Appeal in R. v. Neve 1999 ABCA 206, [1999] 11 W.W.R.649 considered the nature of similarity of thepredicate offence necessary to establish a pattern under either of ss. (

i) or (ii). The Neve court held there were two possible alternatives: 111 ... The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similarin kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that anoffender commits a variety of crimes does not mean that no pattern exists.

There is no requirement that the past criminal actions all be ofthe same or similar form, order or arrangement; though if this has occurred, it may well suffice. [61] A pattern of “repetitive behaviour” is not based solely on the number of offences but also on the elements of similarity in theoffenders behaviour: Gamble, supra; R. v. Lewis (1984), (ON CA), 12 C.C.C. (3d) 353 (Ont. C.A.) and Langevin,supra. The Court must be satisfied that the pattern of conduct is substantially or pathologically intractable (Gamble para 114 per LaForestin R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309 at 338). [62] The pattern required under section 753(1)(a)(

i) may include two very similar incidents or several non-similar incidents: Bunn,paragraph 16. In order to determine whether a pattern exists under that subsection, we look to Mr. Stewart’s criminal history. Mr.Stewart’s criminal record reveals three convictions for sexual assault over the past 24 years, one conviction for incest and one conviction

for assault. All involved vulnerable females, two involved break and enters and two were perpetrated against young children. Theoffences occurred in 1987, 1988, 1991, 1996 and 2007/08 respectively. Many of Mr. Stewart’s convictions involved the use ofalcohol/drugs and include elements of dangerousness, including convictions for dangerous driving and dangerous driving causing injury.Mr.

Stewart has amassed numerous other alcohol and driving related offences as well as convictions for breaches of probation and failureto abide by court orders, with the longest period between convictions being four years (1996-2000; 2006-2010). [63] Mr. Stewart’s record clearly demonstrates a pattern of repetitive behaviour. Since his teenage years he has often combinedsubstance abuse with offending, physically and sexually violating vulnerable women of all ages.

There are clear similarities in terms ofboth the kind of offences (assaulting vulnerable women) and the result (psychological trauma) demonstrating a pattern of repetitiveassaultive behaviour. [64] Having shown pattern of repetitive behaviour under section 753(1)(a)(i), the Crown must also prove beyond a reasonable doubt thatthere has been a failure by Mr. Stewart to restrain that behaviour and that there is likelihood of causing death, injury or severepsychological damage through similar failures in the future. [65] The Crown need only establish a likelihood, not a certainty Mr.

Stewart will fail to restrain his behaviour in thefuture: Bunn, supra at paragraph 18 and R. v. Langevin (1984), 8 D.L.R. (4th) (3d) 333 (Ont. C.A.). Likelihood means more than a possibility and at the very least means more probable than not (Neve, supra andGamble, supra at para 114). [66] Dr. Holden has assessed Mr. Stewart as being a high risk to reoffend sexually violently in the future. Despite some notably gaps inoffending, Mr. Stewart has continued to fail to restrain his behaviour, specifically his sexual offending. In the commission of both hisassault and sexual assaults, Mr.

Stewart has succeeded in causing severe psychological damage to his victims, in addition to physicalharm. I am satisfied beyond a reasonable doubt that in demonstrating a pattern of repetitive behaviour, Mr. Stewart has shown acomplete inability to restrain his behaviour and there is indeed a likelihood he will cause further physical or psychological injury toothers should be failure to restrain such behaviour in the future. iii) Persistent Aggressive Behaviour—Section 753(1)(a)(ii) [67] I am not prepared to conclude that Mr.

Stewart has demonstrated as pattern of “persistent aggressive behaviour” as required under s.753(1)(a)(ii). In defining such a pattern, Acton, J. in Bunn, supra at paragraph 17, looked to the Saskatchewan Court of Appeal’sdiscussion in R. v. Yanoshewski (1996), (SK CA), 104 C.C.C. (3d) 512, 141 Sask. R. 132 (C.A.) at page 522: ... the Concise Oxford Dictionary defines the word "persistent" as meaning "enduring" or "constantly repeated".

The judge made no errorin finding that the behaviour of the appellant was persistent in view of the fact that the period of time during which he committed theoffences of which he was convicted extended from 1964 to 1992 without any significant periods during that time when no offences werebeing committed. [68] Without undermining the severity of these offences and the physical and emotional impact they had on the victims, I am simply notconvinced that Mr.

Stewart’s index offence and prior assaults constitute an “enduring” or “constantly repeated” form of aggressivebehaviour, primarily due to the significant breaks in his sexual offending as well as the level of aggression involved. [69] In the nine-year period between 1987 and 1996, when Mr. Stewart was between the young ages of 15 and 24, he committed twosexual assaults, one incest conviction, and one assault. Two of these offences involved break and enters.

The level of aggression andviolence involved in these assaults varied from “grabbing” and “throwing” two elderly females on a bed; “chasing and tackling” awoman; and “caressing” a young girl in her bed. While the 1987-1996 period (in addition to convictions for dangerous driving anddangerous driving causing injury), could arguably be said to demonstrate a pattern of persistent aggressive behaviour, the next violentoffence Mr. Stewart committed was not until the 2007/08 index sexual assault of which he was convicted of in 2010.

This 10 year gapuntil his index offence, which was different than any of his previous offences, does not form part of the “enduring” or “persistent” patternthat is required under the statutory definition.

[70] While I cannot conclude that Mr. Stewart meets the criteria under s. 753(1)(a)(ii), I need only be satisfied that one of the four subjections under 753(1) have been made out and I have found that the Crown has met its burden under both s. 753(1)(a)(

i) and (b). [71]

Section 753 however operates in conjunction with

section 753.1, and as such a trial judge on a dangerous offender application is required: . . . even though the criteria of subsection 753(1) are satisfied, to consider finding the offender to be a long-term offender, rather than a dangerous offender, having regard in the main for whether the risk presented by the offender is reasonably open to eventual control in the community as contemplated by subsection 753.1(1)(c). If it is, the offender is to be found to be a long-term offender, not a dangerous offender and sentenced accordingly: R v.

Johnson . [1] The essential question to be determined is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce the offender ’ s threat to an acceptable level, despite the fact that the statutory criteria under s. 753(1) have been met ( Johnson, supra and R v. W.T 2004 SKQB 418 ). The Long-Term Offender Provisions [72] Under

section 753.1(1), the Court may find an offender to be a long-term offender if it is satisfied that: 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; (

a) there is a substantial risk the offender will re-offend; and, (

b) there is a reasonable possibility of eventual control of the risk in the community. [73] According to s. 753.1(2), the Court shall be satisfied that there is a substantial risk the offender will re-offend if the offender has been convicted of certain proscribed offences, including an offence under

section 271 (sexual assault), and the offender: (

a) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender ’ s causing death or injury to other persons or inflicting severe psychological damage on other persons; or (

b) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. [74] Mr. Stewart meets the statutory requirements under s. 753.1(1)(

a) as the predicate offence of sexual assault carries a maximum sentence of 10 years. In the circumstances and having regard to his previous record, it would be appropriate to impose a sentence of imprisonment of more than two years for the offence for which Mr. Stewart has been convicted. [75] With respect to s. 753.1(1)(b), there is a substantial risk Mr. Stewart will reoffend, as I have previously discussed at length, as demonstrated by his previous record of incarceration, his past criminal actions and the expert testimony of Dr. Holden. Since Mr.

Stewart has met the first two requirements to be designated a long-term offender, he will be an appropriate individual for a long-term offender designation if there is a reasonable possibility of controlling the risk represented by him in the community, pursuant to s. 753.1(1)(c). As the determination under s. 753.1(1)(

c) is the deciding factor respecting Mr. Stewart being a dangerous or long-term offender it is necessary to examine this issue in some detail.

Is there a reasonable possibility of the risk presented by Mr. Stewart being controlled in the community? [76] In R v. Moosomin 2008 SKCA 169, the Saskatchewan Court of Appeal held that there is no burden of proof on the Crown to negatethe reasonable possibility of eventual control in the community in the way in which the burden of proof is usually conceived.

Section753.1 places an obligation on the sentencing judge “to be satisfied on the basis of all the evidence that ‘there is a reasonable possibility ofeventual control’ of the offender’s risk ‘in the community.’ This is not a question of satisfaction based on proof beyond a reasonabledoubt or any other standard of proof” Moosomin, supra (para 40). [77] The test for eventual control in the community is not one that asks whether the offender is someone who has no prospect fortreatment but rather attempts to reflect the primary purpose of the dangerous offender regime as set out by the Supreme Court of Canada,which is protection of the public (see: R v.

Johnson 2003 SCC 46 , [2003] 2 S.C.R. 357 affirming R v. Lyons (SCC), [1987] 2 S.C.R. 309). [78] Further, one must not assume that because an offender has been unresponsive to treatment in the past they will be unresponsive totreatment in the future. Such a conclusion must be born out of the evidence (see: Moosomin, supra at para 63). The courts have made itclear that the dangerous offender provisions are not reserved only for those for whom all hope is lost. [79] In R. v. William Haug, 2008 SKCA 23; [2008] S.J. No. 100 (QL) (Sask.

C.A.) the Court of Appeal addressed the issue of theinterpretation of the phrase "reasonable possibility of eventual control in the community". Madam Justice Smith, speaking for the court,said at para. 127: We conclude that the trial judge erred in holding that it was not sufficient for him to conclude that control of the risk in the communitywas improbable and that the Crown bore the onus of proving that Mr. Haug was "intractable" or "one for whom hope is forever lost".Rather, it was necessary for him to be satisfied of a reasonable possibility that Mr.

Haug could be successfully treated to reliably identifyand control his impulses within the time frame available for a determinate sentence, aided by a period of community supervision. Thisrequired exactly the optimism that the sentencing judge denied feeling in the passage quoted above. [80] In R v. Stonechild 2008 SKQB 98, the Court at paragraph 19 cites R v.

G.L., a 2007 decision out of the Ontario Court of Appeal(2007 ONCA 548) where the Court stated at para. 42: I do not read Johnson as displacing the principle that, to achieve the goal of protection of the public under the dangerous offender andlong-term offender provisions in the Code, evidence of treatability that (

i) is more than mere speculative hope, and (ii) indicates that thespecific offender in question can be treated within an ascertainable time frame, is required.

The requisite judicial inquiry on a dangerousoffender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offenderprovisions of the Code are "sufficient to reduce [the offender's] threat to an acceptable level." [Emphasis added] The determination ofwhether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatability, that canbring about sufficient risk reduction to ensure protection of the public.

This does not require a showing that an offender will be "cured"through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity ofthe offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public. [81] Unlike the offender in cases such as Otto, supra, in Mr.

Stewart’s case, there is indication in the evidence, including the forensicpsychological assessment, that the offender has succeeded in living independently in the past and there is no evidence he requiresintensive supervision 24 hours a day. Additionally, unlike the offender in Otto or Stonechild, supra, Mr. Stewart has gone considerableperiods of time between the commission of violent offences and while he has amassed numerous alcohol and driving related offencesduring this period he has also been able to maintain employment and participate in some programming. [82] Dr. Holden is of the view that Mr.

Stewart “urgently needs high intensity sex offender, anger management, and substance abuseprogramming, similar to that provided by the Correctional Service of Canada. In many ways, he presents rather well: he has been able tohold long-term jobs and has been involved in long-term relationships. He is not an unintelligent man and would certainly be able,intellectually, to benefit from the kind of cognitive-behavioural programs the Correctional Services of Canada provides” (Exhibit P-10, p.52). Dr. Holden indicates that in his opinion, Mr. Stewart needs to invest in institution-based programming and have a long-term

commitment following release to community based programming.

He states: “ If he is released in the community … he needs to have a sincere commitment to maintaining sobriety and one would suggest that frequent, random urinalysis might be appropriate while he is under supervision of the parole authorities ” (Exhibit P-10, p. 52). [83] As indicated by the Court in Stonechild , supra at para 106 , “ the opinion of an expert psychiatrist/psychologist can carry a great deal of weight when a sentencing judge is determining if an offender should be designated a long-term or dangerous offender. ” [84] Despite the weight that may be given to the psychologist’s opinion, ultimately it is the sentencing judge who must make the final decision.

In this particular case, the Court finds Mr. Stewart to be an intelligent individual, who has previously demonstrated an ability to function in the community for significant periods of time. In the past he has been able to make some progress by attending counselling and programming and to address and recognize the criminogenic factors that have contributed to his offences and substance abuse issues. Mr. Stewart’s institutional behaviour has been assessed by Correctional workers to be primarily unremarkable and without incidents of violence. There is no doubt that Mr.

Stewart has experienced relapses in his behaviour and in recognizing and taking responsibility for these issues. He is clearly in need of further programming. However, the totality of the evidence before me suggests an ability to address these issues and a likelihood of controlling his behaviour in the community. [85] Dr. Holden concluded that

section 753(a)(

i) and (ii) were met as was 753(b). He felt Mr. Stewart was at a high risk to reoffend sexually violently in the future if he did not commit himself to actively participate in programming and relapse prevention: “ I do not feel he is completely untreatable at this time, and do feel there is a chance of the eventual control of his behaviour in the community ” (Exhibit P-10, p. 53). He therefore suggested Mr. Stewart was an appropriate candidate for a long-term as opposed to dangerous, offender designation. [86] That said, I agree with the assessment of Dr.

Holden insofar as his conclusion that there is a reasonable possibility that Mr. Stewart ’ s behaviour can eventually be controlled in the community. The evidence before me suggests that this can be accomplished within the limits of a determine sentence of incarceration. I therefore designate Mr. Stewart as a long-term offender within the statutory requirements set out in

section 753.1(1). If Mr. Stewart is a long-term offender, what is the appropriate sentence for the predicate offences involved? [87] The Court having designated Robert Stewart as a long term offender must then turn to determining an appropriate sentence. Sexual assault under s. 271 of the Criminal Code provides a maximum term of imprisonment of ten years where the Crown as in the case at bar proceeded by way of indictment. [88] At trial Mr. Stewart had testified that he loved K.E. and it was clear that K.E. loved Robert Stewart.

At some time that love that was similar to a father daughter love was perverted by Mr. Stewart by lust that turned the love relationship into that of perpetrator and victim. [89] Criminal Code s. 718.01 provides when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Section 718.2 goes on to say that: . . . a court that imposes a sentence shall take into consideration the following principles . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years . . . (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. These are to be deemed as aggravating circumstances.

[90] An appropriate sentence must reflect the abuse of a step-father/daughter relationship which left a young girl confused andconflicted as to how to respond to the violation of her person by someone she had grown to love and believed who loved her and whowould protect and care for her. Her confusion and internal conflict allowed the abuse to continue for a considerable period of timebefore she disclosed the sexual assaults. [91] Mr. Stewart has a lengthy criminal record including incest (1987), break and enter and commit sexual assault (1988), sexual assault(1996) and the predicate offence (2008).

There was minimal force used during the assault on K.E. and certainly there was no brutality. There is no evidence that alcohol consumption led to the assault against K.E. The majority of his other offences relate to his strugglewith alcoholism and uncontrolled binge drinking. Between his offences he appeared to be hard working and reliable and self supporting.

His denial of the predicate offence is based on abhorrence of similar offences against children and his unwillingness to acknowledge thathe would have committed such an offence. [92] The Crown has asked for the maximum sentence of ten years because of the circumstances of the offence and the record of theaccused. The Defence on the other hand has asked for something less than the maximum. The Court feels an appropriate sentencewould be eight years incarceration followed by ten years supervision. [93] However, Mr.

Stewart has spent a considerable period of time on remand having been in custody from his arrest on September 29,2009 until today’s date, March 13, 2013. Since Mr. Stewart’s offences pre-date the enactment of the Truth and Sentencing Act, theCourt is mindful that prior to the introduction of the Truth and Sentencing Act that the general rule was to give two days credit for eachday spent in custody. While that was a general rule it was never mandatory and the Court could, in certain circumstances, deviate fromthat formula. [94] Madam Justice Wilkinson in her decision in R. v. Laliberte [2011] S.J.

No. 433 stated: [49] As explained in R. v. J.P., 2011 SKQB 7, [2011] S.J.

No. 39 (Q.B.) (QL), even prior to the passage of the Truth in Sentencing Actthere were many cases where pre-sentencing custody was given credit at a ration of less than the usual “two to one” (at para. 174): [174] In some cases where an offender did, in fact, receive a full range of educational, vocational, and rehabilitative programs while onremand, or where the offender’s previous incarceration history suggested that the person would be unlikely to obtain early release, orwhere the offender was in custody because he or she repeatedly breached the conditions of his or her release, or was seen to pose aserious danger to society, courts have departed from the standard two to one ratio and in some cases have even denied credit for pre-sentencing custody all together.

As well where an accused has had a significant record for violence and has not benefited from treatmentand where it is seen that they have a limited commitment to rehabilitation, courts have held it to be appropriate for a sentencing judge torefuse to give double credit for remand time. (R. v. Wust, supra; R. v. Caza, [2002] O.J. No. 2625 (QL); R. v. Mason, 2002 MBCA 113,(2002), 166 Man. R. (2d) 170; R. v. Pangman, 2001 MBCA 64, [2001] W.W.R. 10; R. v. Schoenhalz, 1999 BCCA 77, [1999] B.C.J. No.264; R. v. Brownlie, [1997] B.C.J. No. 1972 (QL); R. v. Mills, 1999 BCCA 159, 133 C.C.C. (3d) 451; R. v.

Warren, (ON CA), [1999] O.J. No. 4591 (QL), 127 O.A.C. 193; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No.28 (Q.L.); R. v. Downey, [2003] O.J. No. 4997 (QL); R. v. Tschritter, 2006 BCCA 202, [2006] B.C.J. No. 910). [50] There is other appellate authority to the same effect. (See: Leyte v. Canada (Attorney General), 2010 NLCA 8, 293 Nfld. &P.E.I.R. 310; R. v. Sabourin, NWTCA 6. 2009 NWTCA 6 , 248 C.C.C. (3d) 111; and R. v. Vermette, 2001 MBCA 64, 154C.C.C. (3d) 193). A judge also has an overriding discretion to discount the credit for other reasons. In R. v. Furi, [2006] S.J.

No. 26(Q.B.) (QL) the Court allowed 36 months’ credit for 27 months remand for the purpose of rendering a fit sentence in the overall result. Similarly, in R. v. Payne, 2007 SKCA 28, 293 Sask. R. 31, while the sentencing judge gave double credit for remand time, on apopeal,the Court of Appeal reduced this credit to a one for one credit in order to bring the sentence into the range of fit sentences. In the case ofR. v. Haug, 2006 SKQB 140, 278 Sask.

R. 28, less than double credit was awarded to arrive at a sentence which would allow theoffender to receive sex offender treatment in a penitentiary setting. [95] With respect to Mr. Stewart, he was arrested and placed in custody on September 29, 2009 and is now being sentenced onMarch 13, 2013. It is appropriate to give him two days per day of custody credit for the period from his arrest on September 29, 2009until the conclusion of his trial on April 6, 2010, which is approximately an eight month period and therefore he should be entitled tosixteen months credit. Similarly, from January 5, 2012, when Mr.

Roe was appointed counsel for the Mr. Stewart until today’s date, an

approximately fourteen month period, he should be given double credit. In other words, approximately 28 months. [96] However, during the period April 6, 2010 until January 5, 2012 Mr. Stewart was in custody largely because of his unwillingness towork with his Defence counsel. Indeed at the conclusion of the Crown and Defence’s case on the predicate offence and prior toargument, Mr. Stewart dismissed his lawyer and it required the Court to appoint a new lawyer to review the transcript of the trial andprepare an argument. [97] Mr. Darren Armitage was appointed counsel and very ably represented Mr. Stewart.

However, by September 1, 2010 Mr. Stewarthad dismissed Mr. Armitage and Mr. Brian Pfefferle came on the file. In December 2010 when a date was set for a dangerous offenderassessment hearing, Mr. Stewart discharged Mr. Pfefferle, despite the Court urging Mr. Stewart to get a lawyer and the Court expressinga willingness to appoint a lawyer to act on his behalf. It was not until March 10, 2011 that Mr. Chris Lavier was appointed. Unfortunately his appointment as counsel was terminated on June 28, 2011 when Mr. Lavier was fired. Mr.

Stewart later advised theCourt that he was having a Regina lawyer providing an opinion on his case. [98] Subsequently the Court advised Mr. Stewart that dangerous offender hearing dates had to be set and were set on January 4 to 6,2012. In November, 2011 despite the urging of the Court, Mr. Stewart advised that he did not intend to have a lawyer and would act onhis own behalf again in response to the Court’s urging. Mr. Stewart then had the Court appoint Mr. Little as his counsel, however thatappointment only lasted for a few weeks and by January, 2012 Mr.

Stewart was again saying that he did not intend to have a lawyer. TheCourt then appointed Mr. Bill Roe, Q.C. amicus curiae to ensure that Mr. Stewart did have counsel who could cross-examine Crown’switnesses. Fortunately by January 5, 2012 Mr. Stewart had decided that Mr. Roe was an appropriate individual to represent him and theCourt then appointed Mr. Roe counsel. [99] Mr.

Stewart’s changing of counsel and later challenging the criminal record presented to the Court by the Crown, led to numerousdelays and the Court feels that despite the passage of approximately 32 months in custody there was very little progress on his case andthis is solely the fault of Mr. Stewart. He is in effect a victim of his own petulance. Accordingly, the Court is only prepared to give Mr.Stewart sixteen months credit for that 32 month period. [100] In addition, as previously stated, he must be given 28 months credit for the period from his arrest to trial plus the period whereMr. Roe was his counsel.

Although Mr. Stewart’s sentence is eight years, the Court will give credit for five years, reducing the actualtime in the federal penitentiary to three years. The Court has also taken into consideration the fact that an incarceration period of at leastthree years is necessary for the type of intensive alcohol and sex offender programming that is required to assist in the rehabilitation ofMr. Stewart. Those three years of incarceration will be followed by a period of ten years supervision. [101] I will waive the victim surcharge since Mr.

Stewart will be incarcerated and not in a position to generate income to paythe surcharge. [102] There will be an Order s. 109 of the Criminal Code prohibiting Mr.

Stewart from having any firearms, crossbow,prohibited weapons, restricted weapons, prohibited device, ammunition, prohibited ammunition and explosive substance for a period often years after his release from imprisonment. [103] There will be an order under s. 487.051 authorizing the taking of a number of samples of bodily substances from Mr.Stewart for the purpose of forensic DNA analysis. [104] There will also be an order pursuant to s. 490.012(1) requiring Mr. Stewart to comply with the Sex Offender InformationRegistry Act for twenty years. [105] Applying the rule in R. v.

Kienapple (SCC), [1975] 1 S.C.R. 729, precluding multiple convictions for the samedelict a conviction is entered on the charge of sexually assaulting K.E. contrary to

section 271 of the Criminal Code of Canada and thecharge of sexual touching contrary to

section 251 is stayed at the expiration of the appeal period.

____________________________ M.D. Irwin, J [1] R. v. Goforth 2005 SKCA 12 at para. 35