R. v. Bear, 2020 MBPC 46

CITATION: R. v. Bear, 2020 MBPC 46 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Joel Myskiw and ) David Burland ) for the Crown and ) ) ) Dwayne Bear ) Alex Steigerwald ) for the Accused ) ) ) ) Reasons for Decision delivered: ) October 7, 2020. MCKENZIE, P.J. [1] Dwayne Jonathan Bear pleaded guilty to assault cause bodily harm. Following the guilty plea, the Crown filed a notice ofapplication seeking a remand for an assessment pursuant to

section 752.1 of the Criminal Code, R.S.C. 1985, c. C-46. Dr. Kolton, aregistered clinical psychologist specializing in forensic psychology, completed the risk assessment report. [2] The Deputy Minister of Justice and Deputy Attorney General, Mr. Dave Wright, consented to the application on February 8,2020, as required by the Criminal Code. [3] The dangerous offender application was heard on May 19, 2020, and adjourned for argument on June 19, 2020. The Statutory Scheme [4] The dangerous offender scheme is designed as a “two-stage” process. The designation stage and the sentencing stage.

R. v.Boutilier, 2017 SCC 64. The onus is on the Applicant to prove beyond a reasonable doubt that the offender meets the dangerous offendercriteria and that there is a high likelihood that the offender will reoffend putting public safety at risk of murder or serious bodily harm. R.v. Currie, (SCC), [1997] 2 SCR 260 at paragraph 42. [5] The legislation is found in

Part XXIV of the Criminal Code, R.S.C. 1985, c. C-46. The criteria for the first stage of thedangerous offender application is set out in section 753(1) as follows: 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find theoffender 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 thedefinition 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 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 to other persons of his or her behaviour, or [ 6 ] If the offender is designated as dangerous, then the sentencing judge considers three sentencing options pursuant to section 753(4) of the Criminal Code , the court 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. [ 7 ] Further, the legislation provides guidance for the sentencing judge when exercising their discretion in subsection 753(4) in section 753(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. [ 8 ] Finally, in section 753(5) of the Criminal Code , if the court does not find the offender to be dangerous the long-term offender

section may still be considered: (

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.

Respondent’s Position [ 9 ] In both his written and oral argument, the Respondent conceded that the offence for which he pleaded guilty was a serious personal injury offence, that the predicate offence is part of his broader pattern of violence; and that he has a high likelihood of harmful recidivism. [ 10 ] The Respondent contests that his conduct is intractable and therefore should not be designated as dangerous, but rather as a long-term offender arguing that his sentence ought to be for a period of seven years followed by a long-term supervision order for a period of 10 years.

Evidence [ 11 ] At the sentencing hearing extensive evidence was provided to the Court in the form of documentary evidence and viva voce testimony. [ 12 ] The exhibits filed include: • Exhibit s1: A disk of 1,050 pages of Mr. Bear’s criminal history; • Exhibit s2: Procedural and assessment documents which includes the originating and procedural documents for the dangerous offender application and Dr. David Kolton’s risk assessment and curriculum vitae; • Exhibit s3: Surveillance videos of an aggravated assault committed by Mr.

Bear for which he was convicted of in 2017 and a portion of the assault cause bodily harm offence which is a recording of the predicate offence; • Exhibit s4: A book of materials to assist the court (excerpts from Exhibit s1); • Exhibit s5: A blank VRAG-R scoring sheet. [ 13 ] I heard viva voce evidence from three witnesses, Dr. David Kolton, Ms. Karleigh Wilson, and Ms. Jeannette Acheson. Dr. Kolton’s Evidence [ 14 ] Dr. Kolton’s evidence will be detailed in the risk assessment of Mr. Bear. Ms. Wilson’s Evidence

[ 15 ] The second witness, Ms. Wilson, was Mr. Bear’s probation officer. She also authored a pre-sentence report which can be found at Tab Q at Exhibit s1. She testified to a number of programs available to Mr. Bear should he ever be put on a period of supervised probation. She also gave evidence of Mr. Bear’s prior engagement with Probation Services. [ 16 ] From the time of his first probation order in March 2001 to his most recent probation order, which expired in June 2019, Mr. Bear was bound by six different probation orders.

Unfortunately, during that time he did not complete any programming because of a lack of reporting. In total, Mr. Bear reported to Probation Services on three occasions. [ 17 ] According to Ms. Wilson and Manitoba Corrections running records, Mr. Bear completed a number of programs while in custody. From 2008 to 2019 he completed approximately 20 different programs including programs related to substance abuse, anger management, and domestic violence. In 2019, Mr.

Bear was offered to attend the Winding River program at Headingley Correctional Centre, but he refused the program. [ 18 ] During his latest release he was placed on the highest form of supervision in the community which is part of the Coordinated High Risk Offenders Unit. This unit within Probation Services is a specialty unit that supervises the highest risk offenders who are on probation and in the community. Mr. Bear was completely non-compliant with this supervision program. [ 19 ] In 2019, Mr. Bear was offered to attend the Winding River program at Headingley Correctional Centre.

This is an in-custody intensive addictions recovery program. Mr. Bear declined the offer. [ 20 ] It was Ms. Wilson’s opinion that Mr. Bear was a very high risk to reoffend because of his escalating and frequent use of extreme violence, his persistent substance abuse, lack of pro-social companions and community support, and his cognitive deficits coupled with his intellectual disability. It was her opinion that Mr. Bear could not be safely supervised in the community by Probation Services. Ms. Jeanette Acheson’s Evidence [ 21 ] The third witness was Ms.

Acheson who has worked for the Correctional Service of Canada (C.S.C.) for 37 years in a variety of positions. Ms. Acheson has had no prior dealings with Mr. Bear. Her role in testifying was to describe the processes for dealing with federally sentenced offenders from their initial intake until their sentence is complete. Her evidence included the processes for dangerous offenders and offenders on long-term supervision orders. [ 22 ] Ms. Acheson testified about how programming within Federal Corrections is managed.

Upon entering the institution an inmate is given a 90 day assessment period where the prisoner completes risk assessments, psychiatric evaluations, meets with an elder, and other offender specific evaluations to determine the offender’s security level and programming plan. The goal in planning is to gradually reintegrate an offender into society when it is safe to do so. [ 23 ] Programming is part of an integrated correction program model which is offered to all inmates with differing levels of intensity while inside the institution.

The program intensity offered is based on the intake evaluation and the offender’s capacity. [ 24 ] In terms of supervision in the community, Ms. Acheson explained that individuals who are designated as dangerous do get released pursuant to the legislation and are monitored in the community. Both dangerous offenders and long-term offenders are released, generally, to a community correctional centre (C.C.C.). In Winnipeg, this is generally to Osborne House. Osborne House has a C.S.C. officer on-duty from 8:00 a.m. to 4:00 p.m. during the weekdays.

Offenders are able to be in the community although they are bound by curfews, and have the potential to be checked for alcohol and drugs via a urinalysis. The C.C.C. is locked, but offenders have been known to find ways to leave the C.C.C. and no one is going to stop them from leaving. The security is done by Commissionaires, which is privately hired security. [ 25 ] The only practical difference between dangerous offenders and long-term offenders upon release is that eventually long-term offenders are no longer supervised in the community.

Offending Behavior [ 26 ] The Respondent concedes that the predicate offence is a serious personal injury offence as contemplated in the legislation, that the predicate offence is part of a broader pattern of violent behavior for which he has previously been convicted, and that he has a high likelihood of violent recidivism. The details of his prior offending behaviour is detailed in Exhibit s2. [ 27 ] The predicate offence of assault cause bodily harm was largely recorded by video surveillance which was filed at Tab 3 of Exhibit s3.

The recording begins with the victim lying on the ground in what appears to be either an unconscious or semi-unconscious state. The Respondent can be seen in the background looking over to where the victim is lying. When the victim attempts to get up Mr. Bear rushes over to him and attacks him again by kicking him in what appears to be his head until the victim is no longer moving. When the victim tries to rouse himself, Mr. Bear again rushes over and violently attacks him again. The violence used and the repeated nature is vicious and disturbing. [ 28 ] At the time of the predicate offence, Mr.

Bear had only been in the community for a period of seven days. He had just been released from custody after serving a custodial sentence for a vicious aggravated assault on a vulnerable victim. This offence was also captured on video surveillance and can be found at Tabs 1 and 2 of Exhibit s3. He had only been in the community for nine days prior to this offence. [ 29 ] Mr.

Bear’s offending behaviour goes further, but as the Respondent concedes, the predicate offence is part of a broader pattern of violence, there is no need to go over his lengthy past conduct, but the evidence demonstrates a clear pattern of repetitive violent behaviour which is largely perpetrated on vulnerable people in response to real or perceived threats or insults with a level of violence that is grossly disproportionate to the slight or perceived harm directed at him. [ 30 ] Exhibit s1 summarizes Mr. Bear’s offending and records from Provincial and Federal Corrections and Probation Services.

Mr. Bear’s Background [31] There is a tremendous amount of background information found in the exhibits. Particularly useful was the pre-sentence reportat Tab Q of Exhibit s1, and the forensic psychologist’s report authored by Dr. Kolton. [32] Mr. Bear is an Indigenous person who was born in Winnipeg, Manitoba on November 26, 1981. He is currently 38 years old.He grew up in his home community of Berens River First Nation. Berens River is located approximately 270 km, by air, north ofWinnipeg and is a signatory of Treaty 5. Mr.

Bear grew up speaking Ojibway with his family and finds importance in traditionalIndigenous cultural activities such as participating in smudging, sweats, and powwows. [33] Unfortunately, the Court does not have much information about the community of Berens River or from Mr. Bear’s familialhistory other than both of his parents were from that same community. It is unknown if there was any history of residential schools inhis family, but what is clear from the pre-sentence report is that Mr. Bear grew up in a traumatic environment.

His family was plaguedwith substance abuse and violence in the family home appears to have been normalized. He was placed in the care of Child and FamilyServices and in various foster homes within the community of Berens River First Nation. It is clear that Mr. Bear’s family suffered thesystemic effects of colonization. [34] I also note that Mr. Bear completed grade nine in his home community, but because the community did not have a high schoolwas forced to relocate to Winnipeg for grade 10 where he attended South East Collegiate. Things did not go well for Mr.

Bear in grade10 and ultimately he did not finish that grade. [35] It was during his time in Winnipeg that his own addiction to alcohol, drugs, and solvents began to become out of control. It wasalso around this time when Mr. Bear became involved in the criminal justice system. Mr. Bear attributes his addiction to solvents to hisrelationship with his father at approximately 18 years old and in Berens River First Nation, but notably, he was sniffing gasoline at 7years old. Mr.

Bear is aware that he has a solvent abuse issue and has difficulty staying away from drugs and alcohol in the communitywhen they are presented to him. [36] In terms of work history, Mr. Bear has had little paid employment. He worked briefly as a commercial fisherman for his fatherin Berens River, and has done other odd jobs for money or drugs. [37] Mr. Bear has had a tumultuous relationship with his parents and has gone long periods of time without talking to them. Hismother passed away in 2015 and he found her body after she had died. This was a particular difficult time for him. [38] Mr.

Bear has a 20 year old child with a woman he had a relationship with for approximately 12 years. He has no contact withthis child or his other child that he had as a result of a sexual relationship with his father’s girlfriend. [39] In terms of prior relationships, Mr. Bear has had partner relationships and Dr. Kolton noted that he has had two intimaterelationships. Unfortunately, domestic violence played a role in those relationships which he claims was bidirectional. [40] Mr. Bear has a brain injury as a result of being hit by a car.

Because of this he has been identified as being disabled andqualifies for employment and income assistance. He receives support from them while in the community. [41] Unfortunately, Mr. Bear does not have any family support and he believes he would be unwelcomed in Berens River FirstNation if he were to return there. While in custody, Mr.

Bear has reconnected with his father via telephone and was able to share that heloves him. [42] In Winnipeg he has had the benefit of the Provincial Alternate Support Services (P.A.S.S.) working with him to obtainaccommodations, but he has not been able to maintain these accommodations because of his addictions. He had also not been in thecommunity for very long before reoffending in the last number of years. [43] In custody, Mr.

Bear has a history of working in the kitchen and during this most recent incarceration at Headingley CorrectionCentre he has not had any behaviour incidents and has mostly attended to his position in the kitchen. He recognizes that if he fights hewill lose his job. He earns $65.00 per week and intends to use money he has saved to buy food and clothes when released from custody. Designation Stage - Intractability [44] At paragraph 27 of R. v.

Boutilier, the Supreme Court of Canada states, “I understand “intractable” conduct as meaningbehaviour that the offender is unable to surmount.” The Court goes on at paragraph 35 and 36, Determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry intowhether an offender will continue to be, in Justice Dickenson’s words (as he then was), “a real and present danger to life or limb”:Hatchwell v. The Queen (SCC), [1976] 1 S.C.R. 39, at p. 43. For the Court in Lyons, this prospective inquiry wascritical to the constitutionality of the scheme.

An entirely retrospective assessment could not ensure that indeterminate sentences wererationally connected to the objective of public safety going forward. Nor could it avoid catching offenders who had proved violent in thepast but who presented no future threat. The jurisprudence of this Court subsequent to Lyons has consistently considered a prospective assessment of risk to be a component ofdangerous offender applications. In R. v.

Currie, (SCC), [1997] 2 S.C.R. 260, Lamer C.J. said that a judge has to “besatisfied beyond a reasonable doubt of the likelihood of future danger that an offender presents to society before he or she can impose thedangerous offender designation and an indeterminate sentence”: para. 25, In Sipos, at para. 20, which concerned s.753(1)(b), this Courtexplained that designation requires evidence on both the retrospective and the prospective elements. [45] In determining whether the offender’s conduct is intractable, the Court needs to consider clinical evaluations, mental illnesses,presence of deeply ingrained personality traits or disorders, substance use disorders, impulsivity, lack of empathy, availability of

treatment programs, willingness or ability to comply with and embrace those treatment programs and the efficacy of past treatments. R. v. Boutilier , at paragraph 44 . Risk Assessment [ 46 ] The risk assessment is concerned with whether the offender will continue to be a “real and present danger” in the future or whether he is able to overcome the sources of that risk. [ 47 ] A risk assessment was completed by Dr. Kolton who is a registered psychologist with a specialization in clinical forensic psychology.

He has had experience working with the C.S.C. for nearly two decades and was qualified as an expert in forensic psychology and violence risk assessment. [ 48 ] Mr. Bear underwent approximately six hours of clinical interviews and psychological testing conducted by Dr. Kolton and his associates. In these six hours he performed numerous assessments designed to determine Mr. Bear’s risk for violent recidivism. The results of which can be found at Tab 4 of Exhibit s2. [ 49 ] Dr. Kolton noted Mr. Bear as having a number of medical diagnosis that impact his decision-making ability and his ability to learn and change.

He specifically diagnosed Mr. Bear with: 1. An intellectual disability; 2. Complex post-traumatic stress disorder; 3. Poly-substance use disorder; and 4. As likely having Alcohol Related Neurodevelopmental Disorder (the pre-sentence report, Exhibit s6, indicates prior findings of FASD). [ 50 ] Mr. Bear was also assessed for risk of violent offending using a number of risk assessments tools. Each assessment takes into account an offender’s Indigenous background. The instruments include: 1. Violence Risk Appraisal Guide – Revised (VRAG-R); 2. Violence Risk Scale (VRS), and 3.

Historical, Clinical, Risk management assessment tool (HCR-20). [ 51 ] As the Respondent concedes that he has a high likelihood of harmful recidivism, there is no need to go over the testing results other than to say that Mr. Bear’s results were: 1. VRAG-R – 76 percent of offenders in Mr. Bear’s category reoffended violently within 5 years of release, and 87 percent within 12 years; 2. VRS – received a high score with 51 percent of individuals reoffending violently within 4 years of release; and 3. HCR-20 – Mr. Bear rated as a high risk for future violence. [ 52 ] It was Dr. Kolton’s opinion that Mr.

Bear’s risk of recidivism is “very high” as he faces challenges with his history of substance abuse, criminality, unstable relationships, and intimate partner violence. All of these things coupled with his other diagnoses, specifically his intellectual disability, increase Mr. Bear’s likely risk of future violent reoffending. [ 53 ] Dr. Kolton found that it is not impossible for Mr. Bear to be treated and his risk of recidivism decreased. He opined that it would be challenging to treat Mr.

Bear, but interventions could be developed that may have potential for positive treatment outcomes and that he has had success with other high risk individuals in the past. [ 54 ] In his testimony, Dr. Kolton remained “very guarded” on his prognosis for Mr. Bear’s risk management in the community and that it is only a mere possibility that Mr. Bear could change. Specifically, that it would require many resources and complete abstinence from substances. That even with great resources the expectation of risk being managed was only a possibility given Mr. Bear’s cluster of conditions.

Respondent’s Argument [ 55 ] The Respondent characterized Dr. Kolton’s evidence as equivocal that Mr. Bear has potential for rehabilitation given his future treatment prospects. Rather than synthesize his argument, the Respondent’s written argument regarding intractability at the designation stage is as follows: Evidence of Future Treatment Prospects 23 Dr. Kolton’s report acknowledges that “Mr. Bear has a significant history of involvement with corrections programming and violent offender treatment programs” (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 8, paragraph 2). However, Dr.

Kolton’s report further states that “His involvement in community treatment programs has been limited ...” (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 8, paragraph 2). Moreover, “At no point in time has Mr. Bear received intensive psychological services while in the community (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 9, paragraph 2). 24 Mr. Bear was assessed by Dr. Kolton pursuant to the “Psychopathy Checklist-Revised” Mr. Bear’s score fell below the diagnostic

criterion for psychopathy (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 13, paragraph 3). Furthermore, Dr. Kolton’s report stated that “because the elevated score is due mainly to behavioural characteristics, there is reason to believe that Mr. Bear would be more amenable to treatment and supervision than would a prototypical psychopath” (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 13, paragraph 3). 25 Under the heading “ Criteria for Dangerous or Long-Term Offender Status, ” Dr.

Kolton’s report, at page 20, states that “from a psychological perspective, the threshold criteria for a Dangerous Offender finding may be met in this case” (Emphasis added) (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 20, paragraph 1). It is the Respondent’s respectful position that Dr. Kolton’s comment that the threshold “may be met in this case” underscores the fact that Mr. Bear does not meet the legal criteria to be designated as dangerous, as the legal standard requires that the criteria must be proved beyond a reasonable doubt. 26 At page 20 of Dr. Kolton’s report, the issue of Mr.

Bear’s future treatability is directly addressed. Dr. Kolton’s report stated: Prior to exploring potential risk management strategies and plans that could potentially be effective in this case, it is important to address the issue of Mr. Bear’s treatability, particularly given his intellectual Disability, possible Alcohol-Related Neurological Disorder, diagnosis of Antisocial Personality Disorder and Substance Use Disorder.” (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 20, paragraph 4). 27 Evidently, Dr. Kolton thoughtfully considered Mr.

Bear’s various diagnoses, as well as his challenging personal circumstances and past behaviours, when considering the possibility of future treatment for Mr. Bear. Dr. Kolton’s report goes on to state, at page 21, the following: While the treatment of offenders like Mr. Bear may be challenging, interventions developed for this population do not make them worse and allow for treating this population, and the potential for positive treatment outcome. Nevertheless, it needs to be acknowledged that Mr. Bear’s constellation of diagnoses will make this task incredibly challenging. (Exhibit S2, Dr.

Kolton’s Report dated August 8, 2019, at page 21, paragraph 1). 28 It is important to note that, although Dr. Kolton states that treating Mr. Bear will be incredibly challenging, Dr. Kolton did not provide evidence that Mr. Bear is beyond treatable. Dr. Kolton’s report continues on to specify the following, at page 21: Knowing that Mr. Bear is potentially treatable leads to considering specific interventions that would be most appropriate to meet his identified level of criminogenic risk and need areas to facilitate risk management. (Emphasis added). (Exhibit S2, Dr.

Kolton’s Report dated August 8, 2019, at page 21, paragraph 2). 29 Dr. Kolton’s report further states the following, at page 21: In reviewing his past treatment experiences, Mr. Bear completed several core programs over many years in federal custody. Those programs were low to moderate intensity, structured interventions that have not been able to fully address his core issues and that have not been geared towards individuals with complex clinical needs.

Individuals with significant characterological disorders, substance abuse programs, and violence histories respond best to intensive, long-term, multi-modal psychological interventions. Mr. Bear has not been exposed to these types of interventions. It is likely, given his age and increased level of insight, that he would be even more open to this type of intervention at this point in his life than he would have been previously. In terms of institutional programming, Mr. Bear would benefit from high-intensity, long-term programming that combines individual and group treatment modalities.

He also required maintenance follow up support, both following the completion of a program in the institution, and upon his release to the community. As examples, CSC offers the following programs that are more appropriate in terms of being able to address his risk factors... (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 21, paragraph 2). 30 Additionally, Dr. Kolton’s report states that it “is also recommended that Mr. Bear would benefit from individual psychotherapy” (Exhibit S2, Dr. Kolton’s Report dated August 8, 2019, at page 22, paragraph 5).

It is the Respondent’s respectful view that, in stating how Mr. Bear would benefit from treatment such as individual psychotherapy, Dr. Kolton is providing evidence that Mr. Bear is treatable. 31 It is the Respondent’s respectful view that at no time during his testimony did Dr. Kolton resile from the evidence contained within his report that Mr. Bear is treatable. Moreover, Dr. Kolton testified that he has seen individuals like Mr. Bear change. 32 It is the Respondent’s respectful position that Dr. Kolton’s evidence makes it unequivocally clear that Mr.

Bear is treatable, and that the Applicant has therefore failed to prove he is intractable beyond a reasonable doubt. The Crown’s application to have Mr. Bear designated as dangerous must therefore fail. Past Treatment and Programming [ 56 ] The Respondent has had numerous opportunities for treatment and programming in the past, albeit the vast majority were while in custody. Mr. Bear has had the benefit of: 1. Between 15-16 years of age he attended an anger management program at the Selkirk Healing Centre; 2.

From 2008-2019 he participated in approximately 20 programs while in custody over multiple periods of incarceration including 7 directly related to substance abuse, and 4 directly focused on treating violence and aggression; 3. Between 2008-2016 Mr. Bear was involved in 6 community programs;

4. In 2013 Mr. Bear was admitted into the Provincial Special Needs Program and then P.A.S.S. for support in the community; and 5. Forensic Psychological Services attempted to support Mr. Bear in the community, but he was difficult to engage due to his aggression and ultimately received very little support. [ 57 ] From March 5, 2001, to June 23, 2019, Mr. Bear was bound by six different supervised probation orders. Ms. Karleigh Wilson from Probation Services testified that over approximately 18 years Mr. Bear had reported to Probation Services on only three occasions. Unfortunately, Mr.

Bear reoffended before reporting on most of the probation orders. Further, Mr. Bear did not complete any of the extensive programming options available to him from Probation Services as probation was unable to complete any assessments due to his failure to report. [ 58 ] Dr. Kolton testified that treatment and programming requires input from Mr. Bear and that this is particularly difficult for him given his low range of cognitive functioning, which has been aggravated by a brain injury and solvent abuse amongst his other disorders. That without a “substantial internal push” from Mr.

Bear, that change would be difficult. Given Mr. Bear’s past lack of interest, that change is not promising. Analysis [ 59 ] While the Respondent has pointed to a number of areas that he argues Dr. Kolton has identified as demonstrating that Mr. Bear’s conduct is amenable to rehabilitation and change, he has failed to do so in the context of the balance of the evidence. [ 60 ] In relation to Mr. Bear not having involvement in community programming, the essence of community programming is that individuals have to attend and participate. Ms.

Wilson testified that there were ample programs available through Probation Services, but that Mr. Bear simply has not reported to Probation Services. Further, Dr. Kolton testified that Mr. Bear has been confrontational and aggressive while attending Forensic Psychological Services (F.P.S). The evidence of Dr. Kolton was also that his relationship with P.A.S.S. and F.P.S. have been of limited benefit to Mr. Bear as he has been difficult to work with. [ 61 ] Further to this last point, in the last number of years Mr.

Bear has been in custody for lengthy periods of time and only in the community for a matter of days before being re-incarcerated. It is impossible to use community programming as a benchmark for intractability. Any programming available has to be accessed for it to be successful. [ 62 ] All of this coupled with Mr. Bear’s other constellation of factors would make it very challenging for Mr. Bear’s treatment. Specifically, Mr. Bear has a chronic substance and solvent abuse problem.

He recognizes this difficulty and has even stopped drinking hard alcohol, but he has a very difficult time refraining from using when presented with an opportunity in the community. The Winding River program may have assisted with this, but despite knowing he has addiction issues, he declined the offer to attend. [ 63 ] Dr. Kolton’s evidence was not equivocal that Mr. Bear is treatable, but rather, given tremendous resources (which may or may not be available to him), a tremendous change in Mr. Bear, and the perfect situation upon release, he may be treatable.

I note he stated in his assessment found at Tab 4 of Exhibit s2 at page 20: It is a difficult task to quantify whether there is a reasonable possibility of managing the risk that Mr. Bear poses to the community. In my opinion, the prognosis for eventual management of Mr. Bear’s risk is the community is very guarded. Mr. Bear presents as being a high risk for future violent reoffending. If a Long-term Offender designation is to be considered for him, then it needs to be acknowledged that he will be a high-risk release, even to a structured setting.

One of the central issues to be considered is whether an effective risk management strategy could be developed for Mr. Bear. In this regard, I am particularly troubled by his past performance while being intensively supervised. The risk management plan that was developed while he was supervised previously involved many components of effective risk management for high-risk offenders, yet, he was not cooperative with these efforts. [ 64 ] He goes on to say: Prior to exploring potential risk management strategies and plans that could potentially be effective in this case, it is important to address the issue of Mr.

Bear’s treatability, particularly given his intellectual disability, possible Alcohol-related Neurological Disorder, diagnosis of Anti-social personality Disorder and substance use disorder. With respect to future treatment, it has been shown that punishment and behaviour modification techniques do not improve the behaviour of individuals with criminally oriented/antisocial personalities. …. While the treatment of offenders like Mr. Bear may be challenging, interventions developed for this population do not make them worse and allow for treating this population, and the potential for positive treatment outcome.

Nevertheless, it needs to be acknowledged that Mr. Bear’s constellation of diagnoses will make this task incredibility difficult. [ 65 ] Finally on page 25 of Dr. Kolton’s report he states, Risk management in Mr. Bear’s case will be a significant challenge as his level of risk is high, his integration of past correctional program and treatment information has been limited, his compliance poor, and he has a history of antisocial conduct and an ongoing pattern of criminal and violent recidivism.

As has been identified, risk management in this case will require intensive institutional and community-based treatment and supervision interventions. Mr. Bear has demonstrated that without intensive resources in place to provide structure, accountability, monitoring, surveillance, supervision, treatment, and support there would be little possibility of effective risk management. The potential success of this recommended model is connected to two major issues. Firstly, the identified resources would need to be provided to Mr. Bear over the course of his sentence.

This means CSC must be prepared to commit to providing the resources to facilitating risk management in this case, Secondly, and most importantly, it requires ‘buy in’ from Mr. Bear. His willingness to cooperate, take full advantage of the resources provided, and make a genuine commitment to work on personal change and behaviour management will be central to this plan having the potential to be effective. [ 66 ] Dr. Kolton indicated that there are a number of programs with greater intensity within Federal Corrections. As an example of

one of three programs he recommended as possible was, The High Intensity Violence Prevention program. The program consists of 87sessions that are 2 hours long. The other 2 programs were equally as long and intense. Notably, Mr. Bear does better in a structuredenvironment such as in custody, however, during his most recent incarceration at Headingley Correctional Centre, he refused to take theWinding River program. He also was removed from his Coming to Terms program because he did not want to go because the classeswere too early in the morning for him.

These programs are nowhere near as intensive as those contemplated by Dr. Kolton. Decision on Designation [67] The parties agree that Mr. Bear has been convicted of a “serious personal injury offence” which is part of a broader pattern ofviolence where there is “a high likelihood of harmful recidivism”. I agree. I also find that his violent conduct is resistant to treatment andis intractable given Mr. Bear’s particular constellation of factors together with Dr. Kolton’s prospective risk assessment. I find that theApplicant has proven beyond a reasonable doubt that Mr.

Bear is a dangerous offender as enumerated in section 753(1) of the CriminalCode. Stage 2 - Sentence [68] The real issue in this case is whether Mr. Bear should be given a determinate sentence followed by a long-term supervisionorder or an indeterminate sentence. The Respondent concedes that a conventional sentence is inappropriate and unavailable in thecircumstances. [69] In sentencing a dangerous offender, the Court must determine what will adequately protect the public against the commission ofmurder or a serious personal injury offence as legislated in section 753(4.1) of the Criminal Code. A finding that Mr.

Bear is a dangerousoffender does not create a presumption that an indeterminate sentence will be imposed. R. v. Piche, 2019 SKCA 54. [70] Section 753(4.1) provides that an indeterminate sentence shall be imposed unless the evidence satisfies the court that a lessersentence will adequately protect the public against the offender committing a further serious personal injury offence. [71] In sentencing a dangerous offender, a judge maintains his/her discretion in the determination of the appropriate sanction to beimposed. In R. v.

Osborne, 2014 MBCA 73 at paragraphs 90 and 91: As I have indicated, a discretion, albeit a limited discretion, does exist in the judge who, having declared an accused to be a dangerousoffender, turns to consider the penalty to be imposed (ss. 753(4) and (4.1)).

As a discretion exists, the judge must, therefore, consider the sentencing principles enunciated in ss. 718 to 718.2 of the Code and, inparticular, must consider s. 718.2(d), namely, that an offender should not be deprived of liberty if less restrictive sanctions may beappropriate in the circumstances, and s. 718.2(e), all available sanctions other than imprisonment that are reasonable in thecircumstances, with particular attention in this case to the circumstances of the accused, an aboriginal offender. [72] Given that a conventional sentence is inappropriate, the sentencing options available under section 753(4) are either:

a) An indeterminate sentence of detention; or

b) A sentence of at least two years followed by a long-term supervision order. [73] The Respondent’s argument on sentence was similar to his argument as previously reproduced verbatim in the determinationstage at paragraph 55 titled “Evidence of Future Treatment Prospects”. In addition, he argued that given Mr. Bear’s age and hisrecommended sentence, Mr. Bear’s violent offending will “burnout” over time thereby also reducing his risk of violent offending. [74] Dr.

Kolton gave evidence in both his report and viva voce testimony of a common phenomenon that he referred to as “burnout”.He testified that research indicates that violent offending becomes less probable after 40 years old and continues to decrease as anoffender ages. [75] The Respondent’s argument is essentially that there is a “reasonable expectation” that Mr. Bear’s behaviour can one day bemanaged within the community and therefore a less severe measure than an indeterminate sentence ought to be imposed. [76] In assessing whether there is a reasonable expectation of Mr.

Bear’s manageability prospects for the future, the Court needs toconsider his history of offending behaviour, his past rehabilitative attempts, his personal circumstances, his risk assessments, theavailability and viability of resources to control his risk, and the opinion of the expert, Dr. Kolton. [77] It is uncontested that the predicate offence is a serious personal injury offence. He repeatedly and viciously assaulted thevictim who was obviously no threat to him as he was completely incapacitated. This offence occurred after Mr.

Bear was in thecommunity for only seven days after release from another serious violent offence on a vulnerable person. At the time he was highlysupervised in the community but failed to appropriately abide by his conditions. He was under the influence of methamphetamine. Thisoffence was one of many offences over an approximate span of 20 years. [78] Mr. Bear’s Indigenous heritage is relevant in determining the appropriate sentence, but the impact of Gladue (R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688) factors must be considered in the context of the fact that the protection of the public isparamount in dangerous offender applications. R. v. Osborne at paragraph 35. [79] I note from Mr. Bear’s history that he has had many things happen to him as a child which were no fault of his own. He wasborn to parents who had limited resources who taught him to use solvents and violence as a means of dealing with life. He experiencedtrauma. He was removed from his community to attend school because Berens River did not have a high school for him to attend.

This iswhen he became involved in the criminal justice system. It is clear that Mr. Bear has been affected by the intergeneration effects ofcolonization.

[ 80 ] I accept that there is some hope that as Mr. Bear ages his risk of recidivism may reduce. However, the opposite appears to be happening at the present time. His involvement and time in the community has been very limited despite higher levels of supervision and an increase in age. The lack of incidents while incarcerated during his current term is encouraging, but his refusal to participate in programming is concerning. [ 81 ] According to Dr.

Kolton, his prognosis for eventual management in the community is “very guarded” and that even a release to a highly structured setting would be a “high-risk release” given Mr. Bear’s past performance while being intensively supervised as part of a planned release to manage his risk in the community. [ 82 ] Dr. Kolton provided a number of programs that could potentially assist Mr. Bear. These programs are intensive and it is unknown whether C.S.C. will be in a place to provide them to Mr. Bear, whether Mr. Bear will participate in them, and whether Mr. Bear will benefit from them. Dr.

Kolton noted that positive treatment outcomes are possible, but would be incredibly challenging given Mr. Bear’s constellation of diagnoses. [ 83 ] Further, Mr. Bear has completed several core programs over many years in federal custody which were low to moderate intensity. While Mr. Bear may be more open to intensive programming given his age, he has not demonstrated this openness in his most recent incarceration where he declined the Winding River program and was removed from the Coming to Terms program.

It is also unknown if during his initial intake upon entering federal corrections whether C.S.C. would assess Mr. Bear as a suitable candidate for these federal programs as recommended by Dr. Kolton. [ 84 ] In short, Dr. Kolton identified at page 21 of his report: Risk management in Mr. Bear’s case will be a significant challenge as his level of risk is high, his integration of past correctional program and treatment information has been limited, his compliance with community supervision poor, and he has a history of antisocial conduct and an ongoing pattern of criminal recidivism… Mr.

Bear has demonstrated that without intensive resources in place to provide structure, accountability, monitoring, surveillance, supervision, treatment, and support there would be little possibility of effective risk management. [ 85 ] In short, the evidence of Dr. Kolton is that there is a potential set of circumstances that could possibly treat Mr. Bear that could possibly lead to his potential release from custody if he is highly supervised and treated in the community. However, the evidence does not lead to an air of reality of a possibility of adequately reducing or controlling Mr. Bear’s risk to the public.

Mr. Bear’s cooperation with recent programming has been minimal, his response to supervision in the community has been non-existent, and any treatment prospects are speculative and remote at best. [ 86 ] An indeterminate sentence is not a sentence in perpetuity. While there is no end date assigned to it, Ms. Acheson testified that there are individuals who have been released and supervised in the community. The legislation allows for dangerous offenders to become eligible for parole seven years after the date of arrest on the predicate offence and a review conducted every two years after that. As stated in R. v.

Innocent , 2009 CarswellOnt 4791 (ONSC) at paragraph 57 , “the National Parole Board may be ultimately in a better position to evaluate the offender’s progress in penitentiary and his participation and recommended treatment programs and as to whether there are changes in his lifestyle which signify a true change from previous patterns of impulsive behaviour. (Citations omitted).” [ 87 ] Based on all of the evidence before the Court I am not satisfied that there is a reasonable expectation that imposing a determinate sentence followed by a long-term supervision order would adequately protect the public against Mr.

Bear’s future commission of murder or a serious personal injury offence in the future. Therefore, in accordance with section 753(4.1) of the Criminal Code , Mr. Bear is sentenced to detention for an indeterminate period in a penitentiary. [ 88 ] In addition, the following Criminal Code ancillary orders are imposed: a. Mr. Bear shall also provide a sample of his DNA while in custody as soon as practicable pursuant to

section 487.051; b. A lifetime firearms prohibition pursuant to

section 109; c. An order prohibiting communication with Darrell Christopher Mason while in custody pursuant to

section 743.21; and d. All relevant reports and transcripts of the guilty plea, sentencing proceedings, and a copy of this decision be forwarded to the Correctional Service of Canada pursuant to

section 760. “Original signed by:” MCKENZIE, P.J.