Her Majesty the Queen - v. -, 2017 SKPC 005

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 005 Date: January 12, 2017 Information: 33385835 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marvin Starblanket Appearing: Christy Pannell For the Crown Morris Bodnar For the Accused JUDGMENT METIVIER , J Introduction [ 1 ] On July 10, 2014 I found Marvin Cody Starblanket guilty of committing robbery contrary to s. 344(1) of the Criminal Code , RSC 1985, c-46 . [ 2 ] The Crown applied under the dangerous offender provisions in

Part XXIV of the Criminal Code to have Mr. Starblanket

designated as a dangerous offender and incarcerated for an indefinite term. [ 3 ] Section 753(1)(

a) serves as a gateway to the dangerous offender sentencing provisions. In order for Mr. Starblanket to be designated as a dangerous offender, the Crown must prove beyond a reasonable doubt that: 1) the predicate offence is a “serious personal injury offence” as defined in s. 752; and 2) Mr. Starblanket “constitutes a threat to the life, safety or physical or mental well-being of other persons” on the basis of evidence establishing a “pattern of repetitive behaviour” or a “pattern of persistent aggressive behaviour” as described in ss. 753(1)(a)(

i) and (ii). [ 4 ] Section 753(4) sets out the sentencing options available in cases where a dangerous offender designation is made. The court must impose an indeterminate sentence unless the judge is satisfied by the evidence that there is a reasonable expectation that a lesser measure described in ss. 753(4)(

b) or (c) “will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.” [ 5 ] In this case, the defence argues that the Crown has not established the statutory criteria in ss. 753(1)(a)(

i) and (ii) for Mr. Starblanket to be designated as a dangerous offender, and submits that Mr. Starblanket should be designated a long-term offender under s. 753.1. If Mr. Starblanket is designated as a dangerous offender, the defence argues that a three- year determinate sentence of incarceration followed by a ten-year long-term supervision order will adequately protect the public against the commission of a further serious personal injury offence. [ 6 ] Accordingly, the issues to be determined in this case are: 1. Did Mr.

Starblanket commit a “serious personal injury offence” as defined in s. 752 of the Criminal Code ? 2. Does the evidence establish a pattern of repetitive or persistent aggressive behaviour pursuant to ss. 753(1) (a)(

i) or (ii) of the Criminal Code ? 3. If Mr. Starblanket is designated as a dangerous offender, is there a reasonable expectation that a lesser measure will adequately protect the public against the commission of murder or a serious personal injury offence? [ 7 ] Documentation associated with Mr. Starblanket’s criminal and institutional history was filed by consent. The Crown called several witnesses, employees of Correctional Services of Canada and the Saskatchewan Ministry of Justice, to testify about Mr.

Starblanket’s institutional behavior, participation in institutional programming, and performance while on community supervision. [ 8 ] A forensic psychiatrist, Dr. Tomita, completed a forensic psychiatric assessment of Mr. Starblanket and prepared a dangerous offender assessment report under s. 752.1 of the Criminal Code . Dr. Tomita testified at the hearing and was qualified to give expert evidence in the assessment, management and treatability of violent offenders. [ 9 ] The defence retained Dr.

Nicholaichuk, a clinical and forensic psychologist, who was qualified to give expert evidence in the assessment and treatment of non-sexual violence. The defence also called Father Andre Polievre, a retired priest and founder of the STR8 UP program in Saskatoon designed to help men and women remove themselves from a gang lifestyle. Mr. Starblanket testified on his own behalf. [ 10 ] A pre-sentence report dated September 14, 2016 was filed with the Court. Statutory Framework [ 11 ] The relevant parts of the Criminal Code provide as follows:

752 “serious personal injury offence” means (

a) an indictable offence, other than high 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 of 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 or causing bodily harm) or 273 (aggravated sexual assault). 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 behavior 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 behavior, (ii) a pattern of persistent aggressive behavior 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 behavior, or ... …..

(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, sections 753.1 applies to the application and the court may either find 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. Personal History [ 12 ] Mr. Starblanket is a 34-year-old Aboriginal male. His mother, Beverly, is from Mistawasis First Nation and his father, now deceased, was from Ahtahkakoop First Nation. [ 13 ] Mr. Starblanket was born in Prince Albert, Saskatchewan as the middle child of five siblings. Although he has spent extended periods of time on reserve, he was raised primarily in the urban the centres of Prince Albert, Regina and Saskatoon. [ 14 ] Mr.

Starblanket had a troubled and traumatic childhood marred by chronic substance abuse and domestic violence in the family home. His father committed suicide in police custody when he was five years old; around that same time, he was sexually molested by a male relative who had attended residential schools. [ 15 ] Around the age of five, Mr. Starblanket was placed into foster care and went on to live with as many as 10 to 15 different foster families. Although some of his foster placements were reasonably good, he suffered physical and emotional abuse in others.

He was not encouraged to participate in Aboriginal ceremonies while in foster care and experienced a lack of cultural support and guidance. Mr. Starblanket was the target of racism at school and was made to feel ashamed of his identity. [ 16 ] Around the age of 9 or 10, Mr. Starblanket’s mother was convicted of manslaughter. That conviction was later set aside and Mr. Starblanket moved to Regina to live with his mother, who was working as an aboriginal liaison worker.

He remained in his mother’s care until around the age of 12 when he was transferred to a male group home in Regina, Saskatchewan, due to behavioural concerns and substance abuse. [ 17 ] Mr. Starblanket began to abuse alcohol and illegal drugs at a young age and continues to struggle with a serious addictions problem. [ 18 ] At the age of 15, Mr. Starblanket moved to Saskatoon and lived with his eldest sister, Cheryl, and her common-law husband. He completed his grade 10 at Mount Royal Collegiate in Saskatoon, and earned his Grade 12 equivalency diploma at SIAST in 2014.

He has worked at numerous jobs for brief periods of time, but has been unable to maintain long- term employment.

Analysis 1. Did Mr. Starblanket commit a serious personal injury offence as defined by s. 752 of the Criminal Code ? [ 19 ] The predicate offence took place on February 14, 2014 at Saskatoon, Saskatchewan. Around 6:00 p.m., Mr. Starblanket and a female accomplice entered the Stop and Go Confectionary located at 110 Wedge Road. After walking around the store for several minutes selecting grocery items and placing them on the counter, Mr.

Starblanket stood near the store entrance while his accomplice walked behind the counter armed with a handheld Taser and ordered the store clerk to open the cash register and put the grocery items into bags. Mr. Starblanket then returned to the counter and grabbed the grocery bags and the two of them fled the store with cash and grocery items. [ 20 ] In R v Steele , 2014 SCC 61 , the Supreme Court of Canada established that a robbery committed by using violence, or threats of violence, towards a person is a serious personal injury offence as defined in s. 752 (

a) of the Criminal Code . As the predicate offence in this case is a robbery involving a threat of violence with a weapon, I am satisfied that Mr. Starblanket committed a serious personal injury offence within the meaning of s. 752(a)(

i) of the Criminal Code . 2. Does the evidence, including the predicate offence, establish a pattern of repetitive or persistent aggressive behaviour pursuant to ss. 753(1) (a)(

i) or (ii) of the Criminal Code ? [ 21 ] Both ss. 753(1)(a)(

i) and (ii) require the Crown to establish the existence of a pattern of behaviour, of which the predicate offence forms a part. In a recent decision of the Saskatchewan Court of Appeal in R v McCallum , 2016 SKCA 96 , Ryan-Froslie J.A. explained what is required to establish a pattern of behaviour, at para. 46: …Thus in order to establish the patterns referred to, it is not necessary that the offences be similar in nature or kind, nor must the behaviour constituting the pattern arise under the same types of circumstances. What is necessary to establish the pattern of repetitive behaviour contemplated by s. 753(1)(a)(

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

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

i) and (ii) will involve repetitive behaviour. After all, that is what a pattern entails – repetition. [ 22 ] Mr. Starblanket has 63 criminal convictions, 23 of which involved the use, or threatened use, of violence against another person. His record for violent offences consists of the following: • Robbery, including the predicate offence (4) • Assaults (6) • Assaults on a peace officer (3) • Assaults with a weapon or causing bodily harm (5) • Uttering threats (3) • Forcible confinement (2) [ 23 ] The circumstances of Mr.

Starblanket’s violent offences are summarized below: • Robbery with violence and assault (April 27,1999 Youth Court). On January 21, 1999, Mr. Starblanket followed the victim off a bus. He asked the victim if he had any money and when the victim said “no”, Mr. Starblanket head butted the victim resulting in a

bloody nose. He then asked the victim if he wanted to die and the victim said “no”. Mr. Starblanket head butted the victim a second time and told him to empty his pockets whereupon the victim retrieved a Chapstick from his pockets and gave it to Mr. Strarblanket. Mr. Starblanket then kicked the victim in the leg. Mr. Starblanket walked with the victim to the school where the victim washed up. As the victim turned to leave the washroom, Mr. Starblanket punched him in the side of his head. During this time, Mr.

Starblanket threatened that he was going to shank or kill the victim. • Assault Peace Officer (February 5, 2002). Mr. Starblanket spat on two police officers. On one of those occasions he kept repeating “If I had a shotgun I would kill you.” • Assault with a weapon (January 22, 2003). On January 13, 2002, Mr. Starblanket threatened staff at the Prince Albert Correctional Centre by swinging a mop handle and a mop pail. He was warned to put down his weapons or pepper spray would be deployed, but continued to call staff on until pepper spray was used to control him. During the incident, Mr.

Starblanket threw the mop handle at a staff member who managed to deflect it with his shield. • Assault (September 30, 2003). On September 12, 2003, Mr. Starblanket became upset with a staff member at the Correctional Centre and threw a push broom at him. The broom ended up hitting another guard just below the right shoulder. • Assault with a weapon, forcible confinement, and uttering threats (December 8, 2003). On September 12, 2002, Mr. Starblanket was at a house party on the Mistawasis First Nation where he got into a dispute with the victim.

He cut her under the chin with a broken beer bottle, and then threatened other people by waiving the broken beer bottle at them, and telling them that they could not leave or he would kill them. At one point, Mr. Starblanket dragged the victim into a bedroom against her will. The victim had a cut chin that required stitches, was badly bruised on the left side of her head, and had scraped knees. Two women in the house eventually got out and went to a neighbour’s residence to get help. During the arrest, Mr.

Starblanket spit on one of the police officers hitting him in the face and jacket. • Assault causing bodily harm and uttering threats (May 22, 2007). On August 14, 2006, two months after hitting his warrant expiry date, Mr. Starblanket committed assault causing bodily harm by punching his female victim several times in the face, head and legs, and threatened to kill her if she did not have sex with him. • Robbery (two counts) and assault (August 11,2008). On August 30, 2007, Mr. Starblanket entered an Esso gas station and struck a female clerk when she attempted to stop him from getting to the back of the store.

A short time later, Mr. Starblanket encountered two 14 or 15-year-old youths and robbed them of $16.50. He grabbed the shirt of one of the youths and acted in a threatening manner. He told the youths that he had taken cocaine that night. • Assault causing bodily harm (January 16, 2009). On December 18, 2008, Mr. Starblanket got into an argument with his mother over money and punched her. His mother reported that she was sitting in an armchair when Mr. Starblanket asked her for money. When she refused, he punched her with his right hand in a downward motion.

He then punched her once in the face before she managed to put her hand up to block a second punch. When his mother ran to the door with a cordless phone, but before she could call for help, Mr. Starblanket ripped the phone out of her hand and would not allow her to call or leave the apartment. She continued to call out for help and attempted to bang on the walls to get her neighbour’s attention. She reported that she was afraid for her life. The incident ended when a caretaker heard the altercation and came to the apartment. • Assault causing bodily harm and assault (March 30,2010). On February 15, 2010, Mr.

Starblanket assaulted his common-law- partner. It is reported that Mr. Starblanket woke up angry, thinking that his partner was not going to cook for him. He called her derogatory names and held her down on the bed. The victim was angry and told him to stop. She tried to leave the room, but Mr. Starblanket stood in front of the door to prevent her from leaving. After she got out of the bedroom, he followed her into the kitchen where he bit her mouth and chin, and grabbed her by the neck and choked her so she could not breathe. He dragged her to the room and threw her on the bed and started strangling her.

She eventually escaped with her daughters and called the police. The victim reported that both she and Mr. Starblanket had been sober during this incident. • Mr. Starblanket committed an assault causing bodily harm on the same victim on March 25, 2010. She reported to police that Mr. Starblanket wanted to kill her. Mr. Starblanket choked the victim and hit her about 20 times. The police noticed that the victim’s cheeks and lips were swollen, her right eye was swollen underneath and her nose appeared to have been punched and possibly broken.

She had blood on the lower part of her face that had run down into her neck area. The police noted that there was blood on the floor in the hallway and sprayed on the door opposite the apartment and there were droplets on the floor just inside.

• Two counts of assault (November 12, 2013). On February 12, 2013, Mr. Starblanket attended to the Ramada Hotel and confronted the front desk clerk, who was unknown to him. He asked the victim why his friend got fired from the Hotel. Mr. Starblanket then jumped over the counter and proceeded to punch the victim twice in the face. Mr. Starblanket then left the Hotel and went to the Northwoods Inn and entered the suite of another male victim. Mr. Starblanket punched the victim twice in the face and kicked him once in the back of the head. The police observed that Mr.

Starblanket appeared to be high on something and he made an admission that he had been using cocaine earlier that day. [ 24 ] Dr. Tomita diagnosed Mr. Starblanket as having Antisocial Personality Disorder and alcohol and substance abuse problems. The details of his diagnosis are set out at paras. 15 to17 of his report: Mr.

Starblanket’s Antisocial Personality Disorder is reflected in his pattern on functioning over time that demonstrates a failure to conform with lawful behaviour and an egocentric, callous lack of concern for others, accompanied by irresponsibility, impulsivity, irritability and aggressiveness, risk taking, and a lack of remorse. He evidences a severe level of impairment in personality functioning. While he emphasizes his independence from others, sense of autonomy shows a pattern of weakness as he is easily influenced by events and a self-aggrandizing tendency.

His internal standards for behaviour are contradictory and vacillate between prosocial and criminal thinking patterns. He has a compromised ability to reflect on and understand his own mental processes. His self-focus leaves him with a limited ability to consider and understand the thoughts, feelings and behaviours of other people. He has difficulty considering alternative perspectives. His relationships seem to evidence little intimate mutuality and are based primarily in terms of how others affect his sense of self and his needs and desires.

His relationships are fragile and often disrupted due to perceptions of slights from others. Mr. Starblanket’s personality based problems are not primarily attributable to substance use problems. He has continued to have difficulties even during periods when he has not been using substances heavily such as during periods of incarceration indicating that problems are not caused by substance abuse. Based on the data, his substance use appears to have aggravated problems related to his Antisocial Personality Traits.

He has had disinhibited and impulsive behaviour associated with intoxication; exacerbation of personality features that are related to violence such as irritability and hostility; and, disruption of life domains that otherwise might serve as protective functions such as housing, employment, and supportive and prosocial relationships. Antisocial Personality Disorder marked by a criminal thinking pattern.

This is inferred from the fact that he appears to hold a belief that he can indefinitely avoid the negative consequences of a criminal lifestyle; trouble following through on initially good intentions; low tolerance of boredom and a need for excitement; lack of empathy, remorse or concern for others; poor emotional control as he is easily frustrated and angers quickly; and impulsive decision –making. Underlying criminal thinking is most evident in situations where stability might be expected such as when he was released to his sister Cheryl’s home after receiving a Conditional Sentence Order in 2013.

The fact that he was stable and doing well in school was not sufficient to overcome his ingrained criminal thinking that influenced his decisions to associate with drug using and antisocial peers once again. [ 25 ] Both experts agreed that Antisocial Personality Disorder cannot be cured and that the goal of treatment is to help the person manage their personality. [ 26 ] Dr. Tomita assessed Mr.

Starblanket to be at a high risk for future violence based on the results of three separate risk assessment methodologies, the results of which are summarized at paras. 19 to 21 of his report: On the Psychopathy Checklist – revised, Mr. Starblanket was assessed to have a high level of psychopathic personality features indicating a high risk of future violence. On the Violence Risk Appraisal Guide-Revised, Mr.

Starblanket was assessed to have a test score that fell into the highest risk category, indicating that he share (sic) characteristics with the group of offenders at the highest risk of future violent offending. On the HCR-20 Version 3, Mr. Starblanket was assessed to be in the high-risk category based on the likelihood of several types of scenarios potentially recurring such as violence used to express anger, force others to comply with his wishes, or instrumental violence to obtain tangibles. The pool of potential victims is extremely broad and includes strangers, casual acquaintances, intimate partners, family

members, correctional staff and treatment providers [ 27 ] Dr. Tomita also provided the Court with evidence to the court regarding Mr. Starbanket’s level of treatability, which encompasses the likelihood of engaging in treatment, the likelihood that he will complete the treatment, and the likelihood of treatment effectiveness. Although Dr. Tomita testified that Mr. Starblanket was likely to participate in treatment and complete it, he saw little prospect for a positive treatment outcome, stating at para. 25 of his report, that: …Based on my interview findings, Mr.

Starblanket possesses an intellectual understanding of self-management skills taught in programs but not the ability nor the willingness to apply them consistently in his life generally based on his pattern of re-offending since completing these programs designed to address his risk related treatment needs. [ 28 ] The court heard testimony from both experts regarding the aging out theory, which holds that an offender’s violent offending will typically decrease with age, particularly in the fourth decade of life. Dr. Tomita wrote at para. 31 of his report that “to some extent this general trend should apply to Mr.

Starblanket’s case, but the presence of a high level of psychopathic features suggests the impact may not be large.” Dr. Nicholaichuk testified that recidivism rates drop to around 5% by the time an offender reaches the fifth decade of life, and 0% by the time an offender is in their sixties. [ 29 ] Dr. Nicholaichuk agreed that Mr. Starblanket meets the criteria for Antisocial Personality Disorder and substance use disorders. He used two standardized tests to assess Mr. Starblanket’s risk to reoffend and concluded that the results of his risk assessment were consistent with Dr. Tomita’s.

On the LSI-R, used to assess the risk for general recidivism, Mr. Starblanket’s score “placed him in the upper portion of the distribution of risk scores given by this test.” On the Violence Risk Scale (VRS), used to assess an individual’s risk for violence” Mr. Starblanket scored “in the range where individuals such as he could be expected to recidivate violently at approximately 50% within 4.4 years post-release”. [ 30 ] Dr. Nicholaichuk was guardedly optimistic, at best, about Mr. Starblanket’s ability to address the risk for future violence through treatment and community management. Dr.

Nicholaichuk did not offer any opinion as to the length of time it would take for Mr. Starblanket to internalize programming such that his risk to re-offend can be controlled in the community. He wrote in his report that Mr. Starblanket’s “risk for future violence could be conceivably addressed by proper treatment and effective community based case management,” and that “it may be too early to conclude that Mr.

Starblanket cannot eventually be managed in the community.” He also testified that while treatment on its own may not have a huge impact, treatment combined with supervision would have a “reasonable chance of mitigating the risk.” Dr. Nicholaichuk also noted that even though Mr. Starblanket says that he is motivated to remove himself from his criminal past, avoid negative peers, and endorses the value and importance of education and a pro-social work ethic, these attitudinal changes have yet to be put to the test. [ 31 ] Dr. Nicholaichuk described Mr.

Starblanket’s pattern of behavior at para 16 of his report as follows: Mr. Starblanket’s descent into violence appears to follow a predictable course. First, he appears to experience a fairly constant level of suspicion and anger. When he is bored or experiences some other negative emotional state, he turns to people he knows to buy drugs in order to relieve his internal discomfort. At the same time, he withdraws from people who might be able to help but who disapprove of his substance use and turns to people who can supply him with drugs or who may even encourage their use.

The record is clear in that drug or alcohol intoxication disinhibits his aggression and that it is only a matter of time before he becomes violent. [ 32 ] I am satisfied beyond a reasonable doubt that Mr. Starblanket’s offending history demonstrates a pattern of repetitive violent behaviour, of which the predicate offence forms a part, showing an inability to restrain his behaviour and a likelihood of causing injury or inflicting severe psychological damage on other persons. I am further satisfied that Mr.

Starblanket’s offending history, combined with the opinions of both experts, further demonstrates a pattern of persistent aggressive behaviour, of which the predicate offence forms a part, showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his behaviour. [ 33 ] I conclude that the Crown has proven the requirements of ss. 753(1)(a)(

i) and (ii) of the Criminal Code beyond a reasonable doubt. Accordingly, I designate Mr. Starblanket as a dangerous offender.

3. Is there a reasonable expectation that a lesser measure would adequately protect the public from the commission by theoffender of murder or a serious personal injury offence? [34] To the extent that judges are given discretion in sentencing decisions in proceedings under

part XXIV of the Criminal Code, the sentencing principles in s. 718, s. 718.1 and s. 718.2 apply to those proceedings: See: R vBird, 2015 SKCA 134 at para 26; leave to appeal refused (SCC) [Bird]. [35] In R v Toutsaint, 2015 SKCA 117, the Court of Appeal reiterated that once an offender is designated a dangerous offender, an indeterminate sentence is presumed to be a fit sentence and stressed, at para 20, that the onlyquestion the court has to ask itself is whether there is a reasonable expectation a lesser measure would adequately protect the public fromthe commission by the offender of murder or a serious personal injury offence. [36] A “reasonable expectation” requires more than a belief that something may happen; rather, it speaks to a belief that something will happen: See: Bird, at para 36. [37] In considering whether a lesser measure will adequately protect the public, the dangerous offender provisions are not concerned with the offender’s likely manageability while he is intensely supervised, but whether “theoffender does well while not being intensely supervised.” See: Bird, at para 41. [38] In R v Moise, 2015 SKCA 39, the Court of Appeal explained the relevance of Gladue factors to a sentencing hearing under

Part XXIV at para. 24:

Section 718.2(

e) requires a sentencing judge to consider both, the unique circumstances of Aboriginal offenders which may diminishtheir moral blameworthiness in committing the offences for which they are charged, and any available alternatives to incarceration whichexist as a result of culturally sensitive programming and supports both within and outside the Aboriginal community.

When dealing withviolent offenders subject to dangerous and long-term offender applications, moral blameworthiness may have little or not impact on theneed for incarceration to protect the public, but culturally sensitive programming and supports may make a difference to the offender’srehabilitation and management, within the community, of his or her risk to reoffend (see: Standingwater, at paras. 49-53; Montgrand atparas. 16-17; Peekeekoot at para 58) [39] Mr. Starblanket was first convicted of a crime at the age of 16.

He comes before the court with 23 convictions involving the use, or threatened use, of violence against another person. He is only 34 years old. [40] Mr. Starblanket has served two federal sentences of imprisonment. During his first federal sentence, Mr. Starblanket enrolled in the Aggressive Behaviour Control Program (ABC), an intensive program designed to meetthe needs of offenders considered at a high risk to re-offend violently. Mr. Starblanket was admitted to the program on June 16. 2004. One of the goals set for him was to explore his history of substance abuse. It is reported that Mr.

Starblanket was unwilling to look athow alcohol or drugs could have impacted his decision making. It is also reported that when his behaviour was brought to his attention,he would initially deny it, then acknowledge it, and then promise not to do it again. On November 25, 2004, Mr. Starblanket wasdischarged from the program for threatening a staff member where he threatened to “call some buddies to back him up” should staffwrite “bad shit” about him in a report. [41] Between February 21, 2005 and June 3, 2005, Mr. Starblanket took

part in the In Search of Your Warrior program, directed at Aboriginal violence prevention. His attendance and participation in that program are described asexcellent. At the conclusion of the program, it was recommended that Mr. Starblanket find and use the support of an Elder or otheradvisor/counsellor for continued understanding of the challenges of remaining crime free.

[ 42 ] Mr. Starblanket was granted statutory release on August 12, 2005. He was originally released to the Oskana Community Correctional Centre in Regina, but transferred to the Meewasinota community residential facility in Saskatoon on August 23, 2005. After transferring to Saskatoon, he attended the Community Maintenance Program, completing all sessions on December 20, 2005. It is reported that while his attitudes and behaviour towards the program fluctuated between good and poor, he seemed to derive an overall benefit from the program. [ 43 ] Shortly after completing the Community Maintenance Program, Mr.

Starblanket left Meewasinota without permission, resulting in a suspension of his statutory release. The National Parole Board cancelled his statutory release suspension, noting that Mr. Starblanket was “very upfront honest” in regards to his behaviour and appeared “sincere and motivated” to live a good life. It was noted that Mr. Starblanket had the support of Building a Nation Counselling Services, which he planned to continue with. [ 44 ] Mr.

Starblanket started a second cycle of the Community Maintenance Program on April 4, 2006, completing eight of ten sessions before his warrant expiry date of June 15, 2006. It is reported that Mr. Starblanket’s effort and behaviour deteriorated the closer he came to his warrant expiry date. In his last homework assignment, Mr. Starblanket called the facilitator a “fuckin whore,’ and said that the facilitator “looked like a fuckin slut” and “fuck” the facilitator. [ 45 ] On August 14, 2006, two months after hitting his warrant expiry date, Mr. Starblanket assaulted Ms.

Dirk, causing bodily harm to her and threatened her. Mr. Starblanket’s counsel submitted to the court that Mr. Starblanket was “very drunk on the night in question”. [ 46 ] On August 30, 2007, Mr. Starblanket committed robbery and assault. During sentencing on August 11, 2008, Mr. Starblanket stated: …I’d like to say that I’m really sorry for what I did to those guys that morning. I’m real embarrassed by this stuff. I’ve struggled all my life …. I struggled all my life with drugs and alcohol. I was raised really bad and I wasn’t – I had a hard time and, you know, I didn’t mean to do that to them.

When I thought about it, it really bothered me the whole time. I’m ruining my life, hurting my family and I, you know, obviously affected them. I’m really embarrassed by this...I just want to try to figure out the right way this time. You know, it ain’t easy. [ 47 ] Approximately four and a half months later, on December 18, 2008, Mr. Starblanket assaulted his mother. During sentencing, he stated: Yeah.

I’d just like to say that I’ve been involved with the Court for a long time and like the way I grew up and stuff, you know, it kind of plays a factor but also, you know, I’m a man, too, and I’m able to make my own decisions and usually the easier ones are to reoffend and relapse but I just – I just want to say that this is different from everything else because my mom said that my family alienated me. I had a pretty bad Christmas because- because, you know, this stuff happened and I’m sorry, mom. All I got to say.” [ 48 ] On February 15, 2010, Mr.

Starblanket assaulted his common-law partner and on March 25, 2010, he assaulted her causing bodily harm. He received his second federal sentence on March 30, 2010. After being sentenced, Mr. Starblanket stated that: Sorry for what I did Babe. I wouldn’t hurt the girl’s feelings because I know they started calling me Dad. I know we had a nice home, I know we had a really good day that day. I don’t know what happened but I can promise you I’m going to get help.

You told my mom that you wanted me to get help and that’s what I am going to do and I’m just sorry for destroying everything that we had and I really enjoyed the time that we had together. If you’re going to move on, you know, that’s up to you, Babe, but I’m sorry for what I did and I

direct this to Vanessa and my twins (unintelligible). I just want them to know that I love them and I’m really sorry. That’s all I got to say. [ 49 ] While serving his second federal sentence, Mr. Starblanket successfully completed the National Moderate Intensity Family Violence Prevention Program, which ran from June 15, 2010 to July 12, 2010. As part of this program, he developed a relapse prevention plan and the case management team noted that signs of a lapse would include a return to the use of drugs and alcohol. [ 50 ] In September of 2010, Mr.

Starblanket was recommended for a voluntary transfer to the Willow Cree Healing Lodge. In October of 2010, he enrolled in the E-Wa-Wa-Eat (Get Ready Program) designed to: …identify early childhood traumas experienced by Aboriginal People and assist the participant through the Miyomahcihowin program at the WCHL. The Miyomhcihowin program is a wellness program that incorporates all programming at WHCL and helps the Nicisan in their healing journey.

The E Wa Wa Eat program assists the Nicisan by beginning to put order back in his life by developing a healthy thinking pattern, take responsibility for their actions and to live in balance with creation. [ 51 ] It was reported that during Mr. Starblanket’s time at the Willow Cree Healing Lodge, he benefited from attending programs and Elders Interventions and that he was able to link his substance abuse to his criminality. In November of 2010 Mr.

Starblanket was recommended for a series of escorted temporary absences to allow him to attend cultural events and ceremonies, community service work, and community programming. [ 52 ] From November 16, 2010, to January 14, 2011, Mr. Starblanket attended the Kwayask Pimatisowin Program (Impulsive Anger Management), which is a 40-session program designed to address “the root causes of the mismanagement of anger and teaches new skills to reduce the frequency, intensity and duration of anger.” The report suggests that Mr.

Starblanket was an active participant in the program, had gained insight into his triggers, and developed coping mechanisms to deal with them. [ 53 ] Mr. Starblanket started the Miyo Opikinawaiswin (Good Child Rearing/Parenting) program on January 5, 2011, but was removed from the program that same day due to concerns about his anger management. [ 54 ] In January of 2011, Mr. Starblanket was granted the opportunity to participate in a work release program with Choice Country Meats in Duck Lake. Following a favourable review from his employer, his work release was extended in March of 2011. [ 55 ] Mr.

Starblanket reached his statutory release on July 30, 2011. He was released on a number of special conditions imposed by the National Parole Board, including that he abstain from the use of drugs and alcohol. [ 56 ] While on statutory release, Mr. Starblanket began a third cycle of the Community Maintenance Program, but was unable to complete it due to a parole suspension for drinking in a casino. It is noted that Mr.

Starblanket’s attitude in the program vacillated between “being a very positive active participant to one that is somewhat disruptive and discourteous.” The decision was made at that time to maintain his release in the community and to increase intervention in light of Mr. Starblanket demonstrating honesty and insight to the parole officer combined with his apparent willingness to cooperate with increased interventions. [ 57 ] On December 9, 2011, Mr. Starblanket was found drinking at a bar with a significant

amount of cocaine in his possession. During his post-suspension interview, Mr. Starblanket stated that he had recently began selling cocaine for an acquaintance of his and that he initially gave a false name to police because he was on parole. Mr. Starblanket was convicted for possession of drugs and obstructing police. In revoking his parole, the National Parole Board stated: Your actions and decisions in the community were not consistent with the behavioural expectations of an individual on statutory release. You chose to breach your special conditions to abstain from the use of alcohol and drugs.

You also chose to actively engage in criminal activity by selling drugs with very minimal consequential thinking skills and lack motivation to successfully reintegrate. The Board concludes that your risk in the community rose to an unmanageable level and the reasons for your suspension were within your control. Therefore, your statutory release is revoked. [ 58 ] In March of 2012, Mr. Starblanket was released back into the community on statutory release and directed to see the associate psychologist at the Saskatoon Parole Office.

He attended his first appointment, missed his second appointment and did not want to discuss any issues related to his risk at the third appointment as he was reaching his warrant expiry on May 13, 2012. [ 59 ] Upon reaching his warrant expiry date, Mr. Starblanket was bound by the terms of a 2- year probation order that was placed in March of 2010. The records show that between May and December of 2012, Mr. Starblanket made numerous and varied commitments to his probation officer to attend for addictions counselling and treatment, but failed to carry through with any of them.

In January of 2013 the decision was made to transfer Mr. Starblanket to the High Risk Offender Initiative. [ 60 ] The High Risk Offender Initiative is a program designed for offenders with a history of violent or serious violent offences who are assessed at a high risk to reoffend. The program provides intense supervision, with face to face meetings two to three times a week. [ 61 ] On February 12, 2013, while being supervised under the High Risk Offender Initiative, Mr. Starblanket committed two counts of assault at the Ramada Hotel and the Northwoods Inn. At his sentencing hearing, Mr.

Starblanket stated that: I wasn’t thinking about my own needs and what I had going for me and it led to some - - some choices that affected me for a long time. And I really regretted – really regretted my thinking and my errors in judgment that led me into this - - these incidents. And I could say that I have remorse for the people that had to come today to talk about what happened to them. And, you know, I’m very sorry to each of the people that came. I’d like to apologize to Mr. Bergstrom, he didn’t seem – didn’t seem like he was all right, like, he was having a hard time.

And I feel really bad that he had to go through that because of something I did when I should have been at school and going to bed early, and I shouldn’t have been awake at two in the morning on a school night. … And I’m willing to – I’m willing to get help for myself. I’m aware of resources in the community. I have an addictions counsellor, Sandy Neufeld, who I’m familiar with. And we have to – we have to discuss these things with my future now with my new probation officer, Debbie, I believe it is, if it’s still the same, Debbie Fiddler.

And you have to move forward and accept this and try to make the best out of everything so that you can prevent these kinds of things from happening. And I just want to say I’m sorry for everything that I caused. [ 62 ] Mr. Starblanket was sentenced to 10 months of time served for one of the assaults and received an 18-month conditional sentence order followed by 12 months of probation for the assault against the clerk at the Ramada hotel. [ 63 ] The index offence occurred on February 14, 2014, while Mr.

Starblanket was serving his conditional sentence order and under the intense supervision of the Serious Violent Offender Response Initiative (previously called the High Risk Violent Offender Initiative).

[ 64 ] As previously stated, both experts assessed Mr. Starblanket at a high risk to reoffend violently. Based on Mr. Starblanket’s history, Dr. Tomita opined that there is limited prospect that further treatment will reduce his risk of violence in the community and stated at para. 28 of his report that “the only mechanism that can contain Mr. Starblanket’s risk of violence in the community is federal parole.” [ 65 ] Dr. Nicholaichuk stated, at page 15, that “Mr.

Starblanket’s risk for future violence could conceivably be addressed by proper treatment and effective community based case management”; however, he also wrote, at page 17, that Mr. Starblanket “requires the intensity of supervision which is provided by parole supervision in order to be successful” and to “help ensure public safety.” [ 66 ] Mr. Starblanket testified that he is at a point in his life where he is tired of making bad decisions and is motivated to change. He acknowledged that he has a serious addictions problem and expressed the belief that he can manage it with the right resources.

When it was put to him in cross-examination that he has previously expressed a desire to change and not carried through with it, he explained that he has always been sincere about his desire to change, but has a hard time conquering addictions and, at times, has had difficulty finding appropriate resources. [ 67 ] While Mr. Starblanket’s personal history certainly raises Gladue factors, the evidence before me shows that the Mr. Starblanket continues to commit violent offences despite completing both mainstream and culturally appropriate programming targeted to his individual needs. Although Mr.

Starblanket expresses a motivation to change, his history demonstrates that he is unable to sustain that motivation, or translate programming into long-term changes in his attitudes and behaviours that will protect the public against the risk of him committing a serious personal injury offence in the future. Based on all the evidence before me, I am not satisfied that there is a reasonable expectation that any sentence other than an indeterminate sentence will adequately protect the public against the risk that Mr.

Starblanket will commit a serious personal injury offence in the future. [ 68 ] Accordingly, I designate Mr. Starblanket as a dangerous offender and impose an indeterminate term of imprisonment. [ 69 ] I make an order pursuant to s. 109 of the Criminal Code directing that Mr.

Starblanket not possess any firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for life and directing that he not possess any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 70 ] There will also be an order pursuant to s. 487.051 in Form 5.03 directing that Mr. Starblanket provide a sample of his DNA to the DNA data bank. [ 71 ] Finally, there will be an order pursuant to s. 760 of the Criminal Code that a copy of all reports and a transcript of testimony given Dr. Tomita and Dr.

Nicholaichuk and a transcript of the trial, together with these reasons, be forwarded to the Correctional Service of Canada. ______________________ S.L. Metivier, J