R. v. H.A.S. Date:, 2012 BCPC 283

Citation: R. v. H.A.S. Date: 20120629 2012 BCPC 0283 File No: 71292-1-T; 72470-1-T; 72471-1-T; 71773-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS File No: 71773-1 REGINA v. H.A.S. File Nos.: 71292-1-T; 72471-1-T REGINA v. H.A.S. File No: 72470-1-T REGINA v. H.S. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE COWLING

Counsel for the Crown: J. Gaudet Counsel for the Defendant: J. Wright Place of Hearing: Nanaimo , B.C. Date of Hearing: June 20 and 21, 2012 Date of Judgment: June 29, 2012 [ 1 ] THE COURT: With respect to this matter, H.A.S. is before the court for sentencing with respect to seven matters to which he has entered guilty pleas, and also in response to an application for a designation as a long-term offender with respect to two of the offences. [ 2 ] The files before the court include File 71773, where the Crown has proceeded by indictment.

With respect to that matter, there is a ban on publication in place, pursuant to s. 486.4(2), banning publication or broadcast of any information which would identify the complainant. That charges H.A.S. with: on or about the 27th day of April, 1991, at or near Nanaimo, in the Province of British Columbia, in sexually assaulting J. G., used a weapon, contrary to

Section 272 (

a) of the Criminal Code . [ 3 ] H.A.S. elected to be tried in Provincial Court, with respect to that matter, and entered a guilty plea in May of 2011, May 10th, specifically, and that guilty plea has been confirmed before this court. [ 4 ] H.A.S. is also before the court with respect to information 72470-1-T from Saskatoon, Saskatchewan, in which he is charged that on or about the 11th day of April, 2009 at or near Saskatoon, Saskatchewan, [he] did possess a firearm, to wit: a Cooey bolt action rifle, not being the holder of a licence under which he may possess it, contrary to section 91(1) of the Criminal Code . [ 5 ] He is also before the court on File 72471-1-T, a two-count information arising on August 31st, 2009, in Saskatoon, Saskatchewan.

In Count 1, he is charged with committing an assault on R. C., contrary to s. 266 of the Criminal Code . And in Count 2, at the same date and place knowingly utter a threat to R. C. to cause death to R. C., contrary to

section 264.1(1) (

a) of the Criminal Code . [ 6 ] Finally, H.A.S. was charged by indictment on our File Number 71292-1-T, on Count 1 that on or about the 22nd day of December 2009 at or near Saskatoon, [in the province of] Saskatchewan did in committing an assault on M. C. cause bodily harm to her contrary to

section 267 (

b) of the Criminal Code . And in Count 2, at the same date and place, did without lawful authority confine M. C. contrary to section 279(2) of the Criminal Code . And in Count 5, at the same date and place he did commit a breach of recognizance by the use of alcohol or drugs contrary to Section 145 (3) of the Criminal Code . [ 7 ] Again, guilty pleas were entered to all those matters by H.A.S., on May 10th, 2011, and those guilty pleas have been confirmed before this court. [ 8 ] Formal notice to seek designation, pursuant to s. 753.1 of the Criminal Code , as a long-term offender was filed in June of 2012.

The application relies upon the April 27th, 1991, sexual assault with a weapon and the 22nd day of December 2009 assault causing bodily harm as predicate offences. [ 9 ] H.A.S. has been in custody since December 22nd, 2009. He was in custody in Saskatchewan until October of 2010, when he was transferred to the Vancouver Island Regional Correctional Centre, where he has remained, except for a one-month period where he was in the Surrey pre-trial detention centre, while participating in the assessment by Dr. Tomita, which is part of the LTO application.

[10] H.A.S. has a criminal record, which has been filed as Exhibit 5 in this proceeding. A

summary of that record is as follows: between 1987, when H.A.S. was 18, and 1995, when he was 26, he had convictions for nine break-and-enter offences, two robberycharges, and two assault charges with a weapon, also for one aggravated sexual assault, and four miscellaneous

summary-convictionmatters, for a total of 18 convictions. If one includes the present guilty plea to the 1991 sexual assault with a weapon, that amounts to 19convictions relevant to that time period. One of these offences, an assault with a weapon in 1992, arose while H.A.S. was in custody inMatsqui. [11] H.A.S.'s sentences include, on March 25th, 1995, an overall sentence of six years' jail, with respect to convictions for aggravatedsexual assault, assault with a weapon and possession of a weapon all arising from the same incident.

He received a two-year concurrentjail sentence on the assault with a weapon, and one year concurrent jail sentence on the possession of a weapon. H.A.S. was in custodyprior to his 1995 conviction, such that he was released from his six-year sentence imposed in 1995, in February of 1999. Subsequent toFebruary of 1999, his record is as set out in the following paragraphs. [12] May 21st, 2002 -- break enter and theft, contrary to s. 348(1)(

b) of the Criminal Code; possession of stolen property, contrary tos. 355 of the Criminal Code; theft under $5,000, s. 334(b); and mischief under $5,000, s. 430(4). With respect to the first two of thosematters, he received 15-months' jail on each charge; and with respect to Counts 3 and 4, he received six months on each charge. I believethat those sentences were concurrent, though the record does not specifically say so. [13] He also, of course, has the present matters before the court which, not including the 1991 offence, occur between April andDecember of 2009.

It is believed that H.A.S. was released from prison, with respect to the May 2002 property offences, at some time inearly 2003. [14] This application is somewhat unusual with respect to the time gap between the two offences of April 27th, 1991, and December22nd, 2009. The 1991 offence was committed while H.A.S. was on parole for B and E convictions in 1990. The reasons for the latedetection of the offence were set out in Exhibit 1. [15] There are close parallels between the 1991 and the 1993 sexual assaults. Both victims were women in their mid-thirties.

Theother parallels include H.A.S. attacking women who were strangers to him; his being under the influence of alcohol and/or drugs; thethreat and/or actual use of a weapon; and the use of physical force. Both attacks took place between 6 a.m. and 9 a.m., and both tookplace out of doors. Vaginal intercourse took place in the first assault, which lasted about five minutes; in the second, partial fellatio wasforced before the attack was interrupted by a passerby. [16] The circumstances of the two sexual assaults are described more fully in Exhibits 1 and 6, respectively.

They are also reviewedin the assessment report of Dr. Tomita, which is Exhibit 8, at pages 8, 9, and 11. [17] The hearing of this matter took place on June 20th and June 21st, 2012. The matter has proceeded primarily with filedadmissions of fact. The Crown has called Dr. Tomita as its only witness; the defence has called H.A.S. as its only witness. [18] I wish to thank counsel and H.A.S. for the manner in which this hearing has proceeded.

It is noted that the guilty pleas and theadmissions of fact have spared the respective victims both the prolongation of their distress and the necessity to revisit very distressfulevents in their lives. This would apply to both of the sexual assault victims and, also, to Ms. M.C., who is said to be disabled withcerebral palsy and also to have a bipolar disorder.

It is also noted that with the admissions of fact, they would form a matter of recordand, presumably, be available for any future application. [19] With respect to this application, the Crown has indicated it seeks a long-term offender designation with a global sentence ofseven years, with credit for pre-disposition custody of two-and-a-half years, on a two-for-one basis, followed by an eight-yearsupervision order.

The defence also seeks a global sentence of seven years, reduced to two years, with the five-year pre-dispositioncredit. [20] However, the defence submits that a long-term offender designation is inappropriate and that a two-year sentence with threeyears' probation is sufficient protection for the public. [21] Mr.

Wright, counsel for H.A.S., has indicated that H.A.S. would prefer a two-year sentence, alternative to something nominallyless, in order to access federal programming, as H.A.S., amongst other things, has already utilized all of the provincial programmingavailable to him in the past two-and-a-half years. [22] The primary issue between the Crown and the defence position is whether the "pattern" requirements of s. 753 have been metby the Crown. The Crown relies upon authorities such as R. v. Bowman, 2004 BCPC 297, R. v. Dow, 1999 BCCA 177, and R. v. Poole,2000 BCCA 481.

The defence relies upon the reasoning exemplified in R. v. Neve, 1999 Alberta Court of Appeal, 1999 ABCA 206, 137 C.C.C. (3d) 97, and R. v. M.S., [2002] O.J. No. 444. [23] In chronological order, the circumstances of the offences committed by H.A.S. since his release in 2003 are as set out hereafter. [24] Referring to Exhibit 3, with respect to the incident of April 11th, 2009: on that date, the Saskatoon police were dispatched to aweapons' call at an address in Saskatoon. The call indicated that two males, R. C. and Harvey H.A.S., were arguing and that a rifle wasinvolved.

Information from the call indicated that H.A.S. had a rifle in the house, and also that he had been cutting his wrists. The policearrived a 0526 hours a.m. and set up a position of cover nearby. Police were advised that H.A.S. had left the building, but thewhereabouts of the rifle were unknown. [25] C. was located and gave a description of H.A.S. as being five foot eight inches, 175 pounds. Mr. C. indicated that he and H.A.S.were in a relationship and that H.A.S. was generally an authoritative and abusive partner towards him. [26] Mr.

C. indicated that H.A.S. had woken him early that morning and had possession of a rifle that Mr. C. was not previouslyfamiliar with. Mr. C. stated that H.A.S. took the rifle and pointed it at himself and stated that he was going to kill himself. Mr. C.

convinced H.A.S. to put the rifle down. Once H.A.S. had done so, Mr. C. took the rifle and hid it. [ 27 ] Mr. C. stated he returned to the kitchen to find H.A.S. holding a utility knife and slashing his wrist. Mr. C. states he was very frightened by H.A.S.'s actions and tried to grab on to H.A.S.'s wrist to prevent him from doing any greater damage. H.A.S. dropped the knife on the floor and then left the house. Mr. C. was concerned that, in leaving the house, H.A.S. took the rifle with him again.

Both C. and H.A.S. had been drinking. [ 28 ] At 11:30 a.m., H.A.S. was located at another residence by Constable Bailey, and came out of the house when instructed to do so. He was cooperative and gave himself up to the arresting officers. When the officers entered that residence, they observed in plain view a long rifle, .22 calibre, propped against the counter in the kitchen. [ 29 ] The circumstances of the September 3rd, 2009, offence are set forth in Exhibit 4. All of these circumstances are also described at pages 11 to 13 of Exhibit 8. [ 30 ] On September 3rd, 2009, Mr.

C. attended to the Saskatoon police services to report a domestic assault that had occurred on August 31st, 2009, at about 9 o'clock in the evening. He reported that he and H.A.S. had known each other since March of 2008 and had been in an intimate relationship since June of 2009, and that they had moved in together at Mr. C.'s residence. Mr. C. reported that H.A.S. was upset with him, as he had missed H.A.S.’s birthday, when he – C. -- had gone to a family wedding in Montreal. [ 31 ] Mr. C. indicated that after finishing supper H.A.S. was intoxicated from drinking heavily during the day.

In the course of the dispute, H.A.S. pushed Mr. C. from a chair in the dining room, with enough force that he was thrown to the floor. H.A.S. yelled at C. and went into the kitchen area, where he grabbed a large carving knife and put it to his chest and stated, "I'm going to use this on myself." C. reported that H.A.S. had then grabbed the knife handle and continued to make motions towards himself, as if he were going to commit suicide and make it look like a homicide. [ 32 ] C. reported that, at some point, he was taken to the ground, with H.A.S. on top of C.'s chest.

H.A.S. was holding C.’s arms by kneeling on them, while choking him with both hands, with enough force to give C. difficulty in breathing. H.A.S. stated, "I'm going to choke you out." [ 33 ] Bruising was observed by the officer on C., up or near bicep areas. No other bruising was noted. [ 34 ] C. further reports that he ran to the bedroom, where H.A.S. continued to push him into the wall. In the bedroom, C. said that H.A.S. stated to him, while making a fist, "I'm feeling like dumbing you so bad." Further threats were also made to C. by H.A.S. that he would end C.’s flute playing by smashing his teeth in half.

C. stated that he was afraid, as a result of the assault and the threats by H.A.S.. C. was noted by the police to be visibly shaking during his account of the incident. [ 35 ] The circumstances of the December 22nd incident are set out in Exhibit 2. In that case, at approximately 1535 hours, the police were dispatched to an assault complaint in Saskatoon. The female victim, M. C., had been transported to St. Paul's Hospital by ambulance. The police arrived at the hospital at 1542 and spoke with Ms. C. She appeared upset and indicated that she was very scared of H.A.S..

Her left foot also appeared to be quite swollen. Ms. C. indicated her left foot was very sore, and she was waiting for X-rays. Medical examination and X-rays later revealed that she had a hairline fracture, as a result of the assault. [ 36 ] Ms. C. indicated that she had met H.A.S. approximately three years prior to this incident, through family friends. Ms. C. suffers from cerebral palsy and is confined to a motorized wheelchair. [ 37 ] Shortly after moving to Saskatoon, H.A.S. was in need of a place to stay and was invited to move in with C..

At first, the arrangement was to be short-term, but it turned into a living arrangement that lasted almost two years. At the beginning of the relationship, H.A.S. took very good care of C., and she had strong feelings for him. As the relationship went on, however, C. began to see that H.A.S. had problems with alcohol and drugs. C. indicated that when H.A.S. drinks, he becomes angry and violent. [ 38 ] On the night of this incident, H.A.S. had been drinking and the two of them had got into an argument. C. had gone into her bedroom, in an attempt to have H.A.S. cool off.

H.A.S. took exception to her moving to the bedroom and began yelling at her to come out of the room. She came out of her bedroom, but that did not stop the yelling. She decided to return to her bedroom. H.A.S. then ran at her from behind and took control of her wheelchair, subsequently slamming her into the wall, between the bedroom and the bathroom, causing two large holes in the wall. H.A.S. then entered C.'s bedroom and began throwing all of her drawers and items from her closet on the floor. [ 39 ] At one point, C. came back into the bedroom, and H.A.S. left and slammed the door.

C. attempted to leave the room. However, when she opened the door, H.A.S. immediately put her wheelchair into reverse, backing her into the room and closed the door on her, again. She tried to get out of the room on two separate occasions, and, twice, H.A.S. forced her to remain in the room. C. was forced to remain in the room for approximately five minutes, against her will. [ 40 ] C. further stated that H.A.S. also ripped her phone out of the wall. She stated that the telephone is her only contact with the outside world, as she is confined to a wheelchair.

H.A.S. left the apartment a short time later, at which point C. was able to leave the room and go downstairs to advise the building manager of what had happened. [ 41 ] At the time of the incident, H.A.S. was on undertaking with conditions. One of those conditions was that he was to abstain absolutely from the consumption of alcohol and non-prescription drugs. [ 42 ] Exhibit 9 is the victim impact statement of Ms. C. She notes that $168 damage was done to the wall and that the incident took a "mental, emotional, and physical" toll upon her, including upsetting her course of medications for her bipolar disorder.

She describes H.A.S. as follows, at paragraph 2 of the transcription of her notes [as read in]: At first, everything was great and I fell for H.A.S. and he took great care of me. But then, things slowly changed and I started to see his

alcohol and drugs problem come to the surface. When H.A.S. drinks, he becomes angry and can become violent. H.A.S. could be great, supportive, loving at the time of the living arrangements. This is what I needed at the time. H.A.S. made a huge improvement on my quality of life. I fell in love with him very quickly. Unfortunately, my relationship with H.A.S. cost me friendships, because they were uncomfortable with him, and my family cut off communication completely with me. But I stuck by H.A.S. and we continued on with life. Ms.

C. concludes, in the bottom paragraph: The incident caused me major embarrassment, as well. Although I will always care very much for H.A.S., I know he has to pay for what he did to me. [ 43 ] I move on to a review of Dr. Tomita's report. Dr. Tomita was of the view that there was a "reasonably comprehensive" record of H.A.S.'s living situation between 1991 and 2003. At page 2 of his report, he indicates as follows [as read in]: Prior to 1991, the defendant was leading a criminal and substance-abusing lifestyle, marked mainly by theft and break-and-enter type offences.

The shift in his behaviour away from an entrenched criminal lifestyle started to occur during his second federal incarceration, and there is ample collateral information documenting these changes. On page 4 of the report, under the heading "Relationship and Sexual History", the following is said: The defendant does not recall when he reached puberty. His first sexual encounter was with a girl he had met on the street. The defendant told me two male relatives had sexually abused him. One man sexually abused him for three or four years; and the second man had abused him for five or six years.

The abuse involved receiving oral sex and sexual fondling. The defendant decided to pursue charges against them and testified against one of his abusers in 2003. By then, the other man who had abused him had died. The defendant denied having any problems with sexual dysfunction, sexually-transmitted diseases, or complaints from partners about forcing sex on them. He acknowledged that he developed thoughts of forcing sex on others in his early twenties. He occasionally still has these thoughts, but told me he can stop them when they occur, and they have not developed into sexual fantasies or sexual urges.

His prevailing sexual interests have been in conventional straight and gay sexual activity. The defendant told me he has had four or five live-in relationships in his life. The longest has been for about one year. Based on the defendant's descriptions, his most recent relationships have been the more stable ones. Around 2003, he was in a one-year relationship with a woman named Melissa. He told me it was a positive relationship but, at the time, he was going to court against his sexual abuser and had started to smoke marihuana again.

She gave him an ultimatum that if he did not stop using substances, she would end the relationship. The defendant also told me that Melissa thought he was gay, and this was another reason the relationship ended. The defendant told me his subsequent live-in relationships have been with men. After he moved to Saskatoon, he had a six-month relationship with a man who was an actor. The relationship ended when his partner left Saskatoon. The defendant told me his most recent intimate relationship was with victim R.C.

They were living together for over a year. [ 44 ] At page 5, under the heading "Alcohol and Drug Use History", Dr. Tomita notes as follows [as read in]: Marihuana use has been a problem for the defendant. He has been a daily user of marihuana. Just prior to the index charges occurring, he was using about two grams of marihuana per day. The defendant told me his first successful treatment for alcohol and substance use was at Tsow Tun Le Lum, a residential treatment centre where he completed a three-month program.

After completing the program, he entered AA and finished the 12 steps and worked with an AA sponsor for a few years. At the bottom of page 5: File information contained in a 1996 Federal Corrections Alcohol and Substance Use Treatment Program Intake Assessment noted that the defendant reported he had started using alcohol around the age of 10 or 11, began heavy drinking around 19 years of age. At 12 or 13, he was smoking marihuana daily. He used LSD about once a month. After he started drinking, at age 19, he would usually drink to the point of intoxication on weekends.

The defendant highlighted at the time that he had only been in the community for a total of 18 months before his first federal sentence began, and the longest period of time was four months. He acknowledged that he had been using marihuana and hashish and mushrooms inside prison. When he was in the community, the defendant reported that his usual habit was to smoke marihuana joints every few hours, use acid and mushrooms when he could obtain them, and drink upwards of 12 to 24 beer per day. The defendant acknowledged making and drinking brew in prison.

[ 45 ] Under the heading "Past Psychological Assessments and Treatment History", starting on page 6 of the report: The defendant has no previous psychiatric contact and has never been diagnosed with a psychiatric disorder, other than substance and alcohol abuse problems. In the middle of page 6: Dr. D. Lawson completed an intake psychological assessment on September 13th, 1991. Dr.

Lawson noted that the defendant's robbery offences were related to a host of variables, including sexual and psychological abuse he suffered as a child, extreme anger, and a sense of personal worthlessness and maladaptive strategies for dealing with emotions, including poly-drug abuse. Dr. Lawson noted the robberies constituted an escalation in the seriousness of the defendant's offending. Recommendations were made for alcohol and drug treatment and for adult victims of child abuse. No psychiatric needs were identified.

A further assessment in November of 1991 resulted in the following assessment: The psychologist viewed the defendant as unmotivated at the time, and noted an impression that the defendant was quite an immature individual who lived from moment to moment. The psychologist opined that there was much more criminal thinking than it initially appeared and opined, presciently, that it was likely the defendant would be back in federal corrections in the future. A 1996 PCL-R evaluation suggested a moderate risk of future violence.

However, the psychologist assessed the defendant to be at high risk of re-offence prior to warrant expiry, without further treatment. At the bottom of page 6, the following is noted: During his second federal sentence, the defendant had individual psychological counselling with Dr. David Fairweather. The focus of counselling was on the defendant's childhood sexual abuse and sexual orientation issues. Based on a review of Dr. Fairweather's clinical notes, counselling appears to have been productive. There are treatment records noting 38 counselling sessions occurred while the defendant was in prison.

The defendant completed the aboriginal sex offender treatment program between March and July of 1997. Continuing on page 7: The defendant had a psycho-educational assessment done on October 6th, 1997. Measures of learning ability yielded scores ranging from average to superior. Learning potential was assessed to be in the high average to superior range. His assessed IQ was in the average range, but it was noted that because the defendant was from a cultural minority group, his score should be interpreted as being an underestimate of his innate learning potential.

Also on page 7: There was a further assessment in November of 1997. On the Violence Risk Appraisal Guide, or VRAG, an actuarial tool for the assessment of violence risk, the defendant was assessed to be in the moderate to high-risk range for violent reoffending. It was noted that the defendant had completed substance-abuse program, as well as the aboriginal sex-offender treatment program. Treatment evaluations were positive. Dr. Porter noted in his conclusions and recommendations that the defendant appeared to have actively sought rehabilitation for the first time in his life.

He was assessed to be an ideal candidate for an aboriginal residential treatment centre. In 1999, a further risk assessment was done. At that time, the defendant was assessed to have a moderate level of psychopathic features. He was assessed to be at medium to high risk to reoffend violently. The defendant was noted to have made significant improvements in many of his clinical risk factors. It was noted that H.A.S. continued psychological treatment with Dr.

David Fairweather, while on parole, for a further 12 sessions, which focussed primarily on current emotional functioning and working through childhood victimization issues. Dr. Fairweather saw H.A.S. for a further seven sessions and provided a

summary in December of 2000, in which he noted as follows: the defendant's behaviour had been deteriorating and attributed this to the fact that the defendant had never been without some sort of sentence or supervision since his juvenile days, and the prospect of life after his federal sentence ended was provoking anxiety. He had reported a lapsed marihuana use, but was not suspended because it was attributed to the stress of a relationship breakup. [ 46 ] On page 8, I note the following:

The defendant told me that in his early twenties, he did not see that he was doing anything wrong and did not believe he needed any treatment. In his twenties, he had institutional problems and had charges for fighting, drug use and vandalism. The defendant told me that the treatment that he had received for his childhood sexual abuse and the fact he was able to testify against his sexual abusers made him less angry at "the system" and provided closure. [ 47 ] At page 13 of Dr.

Tomita's report, under the heading "Community Functioning While Under Legal Supervision", I note the following [as read in]: Based on a review of file information, the defendant's earlier responses to legal supervision were poor. He was never able to manage in a community very long before a return to alcohol and substance abuse, which eventually led to further criminal convictions. Legal supervision was unable to contain his risk, as he escalated to robbery while on provincial parole in 1991 and then to sexual violence while on federal parole in 1993.

He had, however, already committed his first sexual violence given the current conviction for the April 1991 sexual assault with a weapon. On page 14: In the most recent federal correctional records, the defendant is noted to have struggled between adhering with the "con code" and criminal attitudes, and using programs for his genuine benefit.

He acknowledged to his case management team and treatment providers that earlier in his life he had participated in substance-abuse and other programs only as a way to gain the appearance of cooperation, and to increase the probability of external gains, such as parole release. The notes from treating and supervising professionals seemed to indicate that he made a genuine shift towards using programs for genuine benefit, rather than external gain, during his second federal sentence. During his second federal sentence, there was also an improvement in his response to legal supervision.

He was able to work with his community parole officers and receive treatment from psychologist Dr. David Fairweather. He did well until a series of three suspensions for relapses to marihuana and alcohol use, near the end of his sentence. [ 48 ] On page 15 [as read in]: After his second federal sentence ended, the defendant had another sentence of 15 months in aggregate for property offences, and served his time at the Vancouver Island Regional Correctional Centre, starting May 2002.

He completed a number of programs while there, including substance-abuse management, harm reduction, a peer education program, respectful relationships, and breaking barriers. In a community assessment report for parole release that was completed by a probation officer, it was noted the primary area of risk was potential for relapse to substance abuse. Another concern at the time was the defendant appeared stressed about giving evidence in the ongoing case against his childhood abusers. The defendant was successful in his parole application and was released in November of 2002.

Surveying the parole progress records from November 2002 until August 2003, it appears that the defendant established a working relationship with his parole officer and had been disclosing the events in his life. Contained in the records were a number of references to his continuing sexual abuse counselling through a group called "Male Survivors of Sexual Abuse", and his attendance at Alcoholics Anonymous Meetings. His most recent release on bail, from July 2007 to November 2008, appears to have proceeded without notable problems, based on a review of the bail supervision client logbook records.

On page 15, under the heading "Mental State Examination": On mental state examination, the defendant appeared similar at cross-interviews. He was calm and cooperative. He often checked to make sure he was responding adequately to questions. He appeared straightforward, but upon review of my interview records I noted that some of his report, particularly for events that cast him in a negative light, were substantially lacking in detail. Nevertheless, his accounts were all congruent with the data in the file information.

His affect and mood remained within the normal range. [ 49 ] Under the heading "Opinions - Psychiatric Diagnosis", on page 16: The defendant has problems with alcohol dependence and marihuana dependence. He has abused other drugs in the past, such as cocaine and LSD. Ongoing alcohol and substance abuse has clearly been identified as a factor that elevates his risk of violence. The defendant has an anti-social personality disorder and a moderate level of psychopathic features. He does not suffer from a major mental illness. He has had episodes of depressed moods and suicidal thinking and suicidal threats.

His suicidal thinking has been the product of situational stress and substance-induced depressed moods, which have worsened his personality-based problems, such as impulsiveness and a reckless disregard for his own safety. He does not have a diagnosis of sexual disorder or sexual deviance. Based on the data, his past sexual assaults and the occasional thoughts he still has of forcing sex on others is best understood as a manifestation of his anti-social personality disorder and psychopathic features, in which his anger manifests as sexual violence.

Based on his self-report, these types of thoughts are infrequent and transient, which is plausible, given the more negative aspects of his personality disorder, and have reduced over time, as well.

[ 50 ] Under the heading "Pattern of Violence", at page 16 [as read in]: The defendant was on an escalating trajectory of violence, with the commission of several robberies in 1991, the present April 1991 index offence of sexual assault with a weapon, an attempted robbery within a minimum security institution for which he was convicted of assault with a weapon in 1992, and the aggravated sexual assault in 1993. His violence was directed at strangers, involved weapons, and was for the instrumental goals of taking money or sex.

With the exception of the attempted robbery in the institution, alcohol and substance intoxication were a contributing factor. The trajectory of violence stopped escalating after the aggravated sexual assault in 1993. The defendant did not commit any detected violence until the index offences in 2009.

There was a lengthy period of opportunity to reoffend, as the defendant was free of legal supervision in the community from 2003 onwards, other than for a 17-month period of bail supervision that ended in November of 2008. [ 51 ] On page 17: The defendant's violence did not disappear, given the index offences against two victims, R.C. and M.C. In these offences, however, the nature of the violence displayed by the defendant appears different from his earlier violence. The defendant knew both victims and had some degree of emotional involvement with both.

His violent behaviour occurred in the context of alcohol intoxication and appeared emotionally reactive to the situation at hand, rather than for some instrumental goal. He did not threaten others with weapons. In fact, in the offences against R.C., the defendant wielded a knife and a rifle and threatened to harm himself. He left the scene before his violence escalated to potentially life-threatening levels in all of the incidents. [ 52 ] Under the heading "Violence Risk Assessment", at page 17 [as read in]: The defendant is at moderate to high risk of future violence.

Based on his past pattern of violent behaviour, he remains at risk of future sexual violence and non-sexual violence. However, he has desisted from committing sexual violence and instrumental non-sexual violence, such as robbery, since 1993. Based on the index offences, the forms of future violence that the defendant is at highest risk for are likely to be in the context of ongoing relationships with intimate and ex-intimate partners or with people in his social network. Towards the bottom of page 17: On the HCR-20, the defendant falls into a moderate- to high-risk range.

On the SAPROF, the defendant was assessed to have a moderate level of protective factors against committing further violence. [ 53 ] Under the heading "Treatability": The defendant's treatability has increased over time. Despite what appeared to be a rather bleak prognosis for treatment response earlier in his life, the defendant did eventually make significant gains for the use of treatment and rehabilitation resources.

The file information indicates that the defendant was engaged in treatment, and it is notable that it was the period after his involvement in treatment that he was able to desist from violence, until the index offences occurred. His current potential treatability remains at a high level. The best treatment resources for him will be available within the federal prison system. He needs alcohol and substance treatment and treatment for intimate-partner violence. His need for further sex-offender treatment will need to be assessed again.

He will likely prefer treatment with a native or aboriginal orientation. [ 54 ] Under the heading of "Possibility of Eventual Control of Risk in the Community", Dr. Tomita says as follows [as read in]: On balance, I conclude that it will eventually be possible to control the defendant's violence risk in the community. Legal supervision will be a critical part of the defendant's risk management. However, the defendant's past response to legal supervision has been mixed. [ 55 ] It is noted by Dr.

Tomita as follows: The defendant has been able to work with supervising professionals and use treatment resources available to him on federal parole. Lapses to alcohol and drug use have been detected quickly, permitting supervising professionals to intervene. I also note the observations in the file about the defendant being anxious and apprehensive when legal supervision was about to end. I take this reaction as indicating a higher likelihood of positive response to future legal supervision. [ 56 ] Dr. Tomita also gave viva voce testimony. He presented as credible, thorough and balanced in his evidence. Dr.

Tomita noted that reports show that H.A.S. had positive reports, following treatment, and has made genuine efforts in his counselling and treatment

programs. He noted there was a long period without violent reoffending, until 2009, and that the 2009 offences were emotionally reactive and not orientated towards a criminal goal. [ 57 ] He agreed that there was some indication that H.A.S. has adopted or integrated into his behaviour some of the counselling he has received. He said that there was a downward trajectory in H.A.S.'s resort to violence and criminal behaviour after the 1995 incarceration.

He noted that H.A.S. was in jail from December 1993 onward, when one includes the pre-trial custody, but his access to programming would have been primarily after 1995. [ 58 ] In Dr. Tomita's report, it is noted that H.A.S. has a good work history. He had a back injury at work, for which he received a painkiller prescription that, in August of 1993, may have contributed to his reoffending. [ 59 ] Dr.

Tomita described the recent behaviour of H.A.S. as not predatory, and said that H.A.S. benefits from supervision and control, and that H.A.S. could return to the community, if he gains control over his substance-abuse issues. [ 60 ] As an adjunct to Dr. Tomita's report, I note the letter from John Caulder, M.A., which was submitted as Exhibit 10 on behalf of H.A.S.. Dr. Caulder is counsellor at VIRCC.

That letter says, in part, as follows [as read in]: I hold an M.A. in Marriage, Family, and Child Therapy, and am an Approved Supervisor in both the Canadian and American Associations for Marriage and Family Therapy. Since 1996, the Vancouver Island Parole and the Vancouver Island Regional Correctional Centre have contracted me to provide psychotherapy to adult male offenders, to decrease symptomatic behaviours related to childhood emotional, physical, or sexual abuse, as well as the witness to extreme violence. [ 61 ] Mr. Caulder saw H.A.S. on a self-referral, starting in April of 2011. Mr.

Caulder notes as follows: H.A.S. regularly attended 53 half-hour weekly individual counselling sessions to address issues related to developing and maintaining wholesome feelings and thoughts, over the course of his lengthy remand. Early in treatment, he made a distinct declaration that he was seeking support and guidance to help him through what he expected would be more of a challenge than he could cope with by himself. Notwithstanding his charges, the man that I have worked with, over the last year, struggled to remain open, constructively responsive, and intently responsible for his actions.

During a number of sessions, he sought input from me on how to deal with provocative and harrowing inmate behaviours, as well as potentially violent threats. As far as I am aware, he was successful in regulating his own emotional response through verbal conflict resolution, and avoided escalation that might have led to physical violence by withdrawing or requesting transfer to another living unit. In my experience, these unusual skill sets are little respected or practiced by inmates at VIRCC and, even more rarely, are maintained consistently.

In my opinion, H.A.S. demonstrated the determined character of a man who has decided to act on his conscience after realizing his dark side has no place in the world within which he wishes to live. TESTIMONY OF H.A.S. [ 62 ] H.A.S. was born on [removed for posting], 1968, in Prince Rupert, British Columbia. His grandmother was of First Nations descent, through the Tsimshian band of the Prince Rupert area. H.A.S. understood that she became estranged from her band after she was sent to residential school. His mother is also of First Nations' descent.

His father was of Scandinavian background; and his mother, of necessity, had to live off-reserve and, as such, was also disconnected from her First Nations' heritage. [ 63 ] H.A.S. confirmed the information in Dr. Tomita's report. I quote from page 3 of that report [as read in]: The defendant told me that G. was physically and mentally abusive towards both him and his mother. His mother remained with G. from the time the defendant was 11 years old until he was in his twenties. The defendant told me he had considerable trouble with his stepfather G.

He said his stepfather had criminal associates and encouraged the defendant to steal and commit break-and-enters. However, he would also be extremely abusive if the defendant was caught by the police and would often beat the defendant when this happened. [ 64 ] H.A.S. confirmed that there were frequent moves in his childhood, from city to city and from school to school. He believed that he was in over 20 different cities and schools in his youth. His father was also physically abusive and separated from his mother, at age 6. [ 65 ] H.A.S. confirmed the matters covered in Dr.

Tomita's report, as to the sexual abuse and the early alcohol abuse and early incarceration that H.A.S. encountered. It presents that H.A.S. had a dearth of positive role models in his life. H.A.S. also indicated that he was told that he was stupid and had educational deficits and was very discouraged by that, and that after he attained puberty, he was also confused about his sexual orientation. The sexual assault offences occur when H.A.S. is 22 and 25 years of age. He will be 44 this August. [ 66 ] H.A.S., in his testimony, presented as a straightforward and open individual.

He demonstrated remorse and insight into his issues and his offending behaviour. The court is cognizant that there can be a serious disconnect between well-intentioned and sincere demonstrations of reform and the breakdown that can occur when a person with unresolved issues becomes disinhibited by substance abuse.

[ 67 ] When H.A.S. physically removed himself from the destructive presence of his stepfather and the damaging acquiescence of his mother to that behaviour at age 15 by running away from home, he indicated that he did not know how to live in a normal home -- referring to his time at his aunt's in Black Creek, where there was no abuse and no stealing. [ 68 ] H.A.S. said that he found that when he first went to jail, he "actually liked it there".

He described how, after a period of feeling worthless and not caring what happened to him or necessarily to others, and not having any regard for treatment, he started to change. He said that he tried to see himself as a survivor, not as a victim, and that if he could change the way that he thought, he felt he could change his feelings.

He indicated that he tries to avoid what he referred to as "thinking errors", which he described as such things as self-pity, negativity, victimization, and unjust thoughts. [ 69 ] He said that he took great encouragement from his intellectual assessment -- that was referred to earlier from Dr.

Tomita's report -- which indicated that he had good intellectual skills, although he found that initially he was upset when he first heard this news, with how he had been treated before. [ 70 ] He indicated that he had tried a couple of times to get police action about his sexual abuse, but it was not until 2001 that anything happened.

The resolution of those issues, through the court process, was difficult and did not take place until 2003-2004. [ 71 ] He has indicated that while in custody and out, he has taken upgrading; that he has Grade 10 and some courses above; that he has also taken a welding course at what was then Malaspina College. He has skills in a number of vocational areas and primarily in cement finishing.

He indicates that he believes he has $15,000 in tools, in storage in Saskatchewan. [ 72 ] His job strengths are primarily in blue-collar fields, and he has encountered problems in the past, in some of his working situations, with co-workers using alcohol, and that contributing to his own abuse of alcohol. He indicated that this was part of the process that contributed to the 2009 events. [ 73 ] He indicated that his relationship with Ms. C. was not sexual, and that with Mr. C. was, and that part of the dispute with Ms.

C. was a reaction to her wish to have the relationship be more than he wished it to be. [ 74 ] He indicated that he has been clean for two-and-a-half years. This admittedly takes place primarily in a prison context. However, as noted in the material, in the past, he was able to access substances when incarcerated and, presumably, is still able to do so, if he so wished. [ 75 ] As Mr.

Caulder's report indicates, life in prison has not been easy for H.A.S., due to the path that he has chosen, including the fact that he was a witness for the Crown. [ 76 ] H.A.S. has taken an interest in religious studies and guidance. He is ashamed of his past conduct and does not want to be stuck in that lifestyle.

H.A.S. indicates that, after his release, he hopes to rebuild his life in Saskatchewan, where he feels he functions best. [ 77 ] On behalf of H.A.S., a number of certificates were filed which, together, make Exhibit 11, and they refer to different courses and programs that he has taken, and they indicate that he is engaging in a genuine effort to rebuild his life. ANALYSIS [ 78 ] I make the following general observations.

The sexual assault in 1991 would clearly qualify for a sentence in excess of two years, although it is problematical as to what the overall sentence might have been had H.A.S. been sentenced for both offences in 1995 and had there been a Gladue report. See, for example, the sentencing in the R. v. Dow decision mentioned earlier. [ 79 ] I am not convinced that the event with M.C would qualify for a sentence of two years or more, but that is somewhat academic, in the present context. [ 80 ] As a child, H.A.S.'s life appears fated to have set him on a self-destructive course.

He was disenfranchised and marginalized on his mother's side, and the male role models in his life were abusive and encouraged him to commit property offences. Alienated on a number of levels from mainstream society and peer socialization, and with over 20 moves about the province, his schooling was disastrous, and he was mistakenly told that he was stupid and had learning disabilities.

In this context, he got deeply into substance abuse and property crime, escalating into robberies and sexual assaults. [ 81 ] There appears to be a true shift in his behaviour, from very serious goal-oriented crime to less-serious emotionally-reactive crime. Dealing with substance abuse, overcoming limited life skills, and maintaining good support networks remain issues for him. [ 82 ] In bits and pieces, since about 2000, H.A.S. appears to have embarked on the process of building a more functional life for himself.

He has found out about his true intellectual ability; he has worked out issues around his sexual orientation; he has sustained some personal relationships for increasing periods of time; he has established a work record and a tentative career path. He has matured generally, and particularly with respect to anger management and conflict avoidance. [ 83 ] He has demonstrated instances of walking away from more serious behaviour in the 2009 incidents. He appears to have derived benefit from the aboriginal sex-offender treatment program.

He was able to participate in the bringing of charges against his sexual abusers and has obtained some closure in that area. He has become receptive to counselling treatment and presents as actively pursuing self-improvement. He has maintained sobriety for his time in custody and at other times. Alcohol and marihuana use present as the primary destabilizers to his behaviour. He has gone for over five years without reoffending. CASE LAW [ 84 ] I refer at this time to the case law with respect to long-term offender matters.

An extensive review of B.C. decisions over the last five to ten years did not show any cases where a long-term offender order was sought and denied. A number of the cases involved joint

submissions for a long-term order, as an alternative to a dangerous offender designation. [85] The decision cited by Mr. Wright, in his book of authorities, R. v. M.S., [2002] O.J.

No. 444, is the only decision I have comeacross or been referred to declining to impose an LTO order. [86] The Neve decision sets aside a dangerous offender order and orders a new hearing, but that decision appears to have been based,in part, on the acceptance of a residual discretion that is said not to be available in the present legislation and on other matters specific tothat decision. [87] Of the authorities relied upon by the Crown, the 1999 decision, R. v. Dow, involved an appeal from a denial of a dangerousoffender designation. [88] R. v.

Bowman, 2004 BCPC 297, involves an actual long-term offender designation. [89] It is acknowledged that the dangerous offender designation cases cited by the Crown were not cited as comparable to H.A.S.'ssituation, but for the purposes of illustrating issues relating to patterns of behaviour which are relevant to both types of designation. [90] In the Bowman case, the defendant was in his mid-forties and was given a sentence of four years, plus long-term offenderdesignation.

In the Bowman case, it was noted that the substantial risk to reoffend must have a high threshold and that reoffending doesnot mean a general non-violent offence, but physical harm is not required. Threat of violence and/or psychological harm could suffice.This is at paragraphs 59 and 60 of the decision. [91] Mr. Bowman had six prior robberies -- four with the use of a knife -- and also an attempted murder conviction. He had 22 otherconvictions, including seven convictions for theft of hockey cards.

He appeared to have some sort of an obsession with obtaining hockeycards. [92] Circumstances are further described in paragraphs 76 to 81. It was noted that Mr. Bowman would return to prison within daysor hours of being released, that he had a mental illness, paranoid schizophrenia, that he was considered to be amoral and institutionalized. [93] There is also a discussion of the long-term offender principles in paragraphs 67 to 72 of that decision. [94] I note the decision of Mr. Justice Macaulay, in R. v. Pelkey, 2012 BCSC 815.

This was an application for a dangerous offenderorder regarding a manslaughter conviction. There was a history of serious violent offences. Mr. Pelkey was 29 years of age and a FirstNations' male. In effect, a long-term supervision order was made, following a 10-year sentence. It was noted of Mr. Pelkey that he hadnot been out of jail for more than 30 days, since 2004. This is set forth in paragraphs 60 to 65. [95] It was noted that Mr. Pelkey was mildly mentally handicapped and that 99 percent of the population would score higher than heon a functional test.

This is at paragraph 73. [96] The requirements for a designation as a long-term offender are discussed at paragraphs 12 to 14 and paragraphs 16 to 20.Paragraphs 43 to 45 discuss some of the sentencing principles that are involved. Paragraph 45 indicates that the discretion to decline tomake the order was removed in 2008, if the s. 753 preconditions were met. [97] I also note paragraphs 47 through 49 and, in particular, paragraphs 53 through 57, with respect to concerns regarding aboriginaloffenders. [98] I also note the decision in R. v.

Bruneau, 2009 BCSC 1089, which is authority for the proposition that a pattern can beestablished by as few as two offences. See paragraph 177 of that decision. [99] I have also had regard to the decision R. v. J.E.M. of Smith J., 2011 BCSC 715. In that case, a dangerous sexual offender orderwas made, and there was a discussion of the patterns of repetitive behaviour at paragraphs 40 through 44. In that case, sexual offences ofescalating violence were noted. [100] I have also noted the decision R. v. M.L.L., which also is cited sometimes as R. v.

D.E.B., in relation to the co-accused; that is at2012 YKSC 7 , 2012 YKSC 07. In that case, by joint agreement, a long-term offender order was not pursued, due to changes inlifestyle made while M.L.L. was serving a sentence for second-degree murder that was reduced to manslaughter, when a new trial wasordered after a successful appeal. He had served about seven years in jail, including pre-trial custody and sentence time awaiting theappeal outcome.

He was age 36 and a First Nations' male. [101] There are parallels between the background of M.L.L. and his turn-around in his life and those of H.A.S., and these can be foundat paragraphs 14 through 21 of that decision. [102] As mentioned earlier, the issue of "repetitive pattern" is the primary point of contention between the Crown and defence. Thereis a definite pattern as to the two sexual assaults and had the system been aware of the 1991 event in 1995, an application at that timewould have been problematical for H.A.S., who was, as Dr.

Tomita noted then, on "an escalating trajectory of violence". [103] It is to be noted that H.A.S. did not disclose his 1991 offence during his sexual-abuse counselling or any other counselling; but itis also noted that he has pled guilty to all the present offences and is participating in a joint submission as to the determinate portion ofhis sentence that could be said to be at the higher end of the sentence spectrum. See, as referred to earlier, R. v. Dow, for example. [104] His present offences do not present as part of the same egregious pattern that existed in the nineties.

The recent offences can becharacterized as less serious and involve a different dynamic, as noted by Dr. Tomita. The 2009 offences present more as a person failingto cope with issues of domestic violence and relationship problems, than as predatory behaviour. The presence of disinhibition due tosubstance abuse is a common factor, but the context is very different. The more recent offences are less serious and show some exercise

of restraint in ultimately disengaging from violence, at a point well below that reached in the earlier offences. [105] I note that the range of sentence accepted by H.A.S. follows a guilty plea and is higher than the five years received by Dow, forhis most recent offence. Dow received three- and five-year sentences for two prior home invasion sexual assaults. Dow's guilty pleacame after the commencement of his trial. [106] The pattern established by the 1991 and 1993 offences has stopped for almost 20 years. H.A.S. has demonstrated personaldevelopment in developing relationships and maintaining employment.

He has demonstrated periods of sobriety. He has abstained fromviolence while in custody, under difficult circumstances. He has shown remorse, introspection, and a desire to change. He has issues toovercome, but not markedly more so than a substantial proportion of people now in prison, or out of prison with prior convictions, whoare not subject to DSO or LTO designations. [107] On the matter of Gladue issues, I consider that the importance of Gladue considerations with respect to H.A.S. may have beenoverlooked.

With hindsight, any DSO or LTO assessment should make provision for, firstly, noting if there is a Gladue issue, and,secondly, if there is a Gladue aspect, making proper allowance for the integration and inclusion of the Gladue report in all aspects of theassessment process. [108] I note the remarks in paragraphs 23 through 29 of the decision in R. v. Good, 2012 YKCA 2, as to the dangers of "complacency"and "assumptive knowledge" mentioned therein. It is less apparent in H.A.S.'s case than in others that Gladue issues arise.

But when oneconsiders his family history, it presents that the residential school process directly affected his grandmother, and this consequentlyaffected H.A.S.'s upbringing, as did other issues with respect to his mother's situation. [109] The absence of a Gladue report does not affect the outcome of these matters, as I perceive it, but may be relevant to future cases.Exactly how Gladue considerations integrate with DSO and LTO provisions is less clear, in the long term.

In some respects, there wouldseem to be an inevitable and possibly unresolvable conflict between the application of ss. 753 and 753.1 of the Code, and s. 718.2(

e) ofthe Code.

SUMMARY [110] I find that the Crown has failed to establish beyond a reasonable doubt a pattern of repetitive behaviour sufficient to meet therequirements of

section 753.1. [111] I do not consider that H.A.S.'s situation is properly comparable to that in the Bruneau case, for example. I find that the 1991sexual assault with a weapon qualifies as a predicate offence, but not the 2009 assault causing bodily harm of Ms. C. I consider that evenif the 2009 offence concerning Ms. C. qualifies as a predicate offence, I still do not consider that a "repetitive pattern" has beenestablished beyond a reasonable doubt, due to the difference in nature and quality of that offence from the 1991 and 1993 offences.

I alsotake into account the non-predicate offences. [112] I consider that the evidence establishes that there is a moderate risk that H.A.S. will reoffend, but does not establish beyond areasonable doubt that there is a "substantial risk" in the complete sense of that term, as defined in s. 753.1(2). [113] I consider that if I did classify H.A.S. as a long-term offender that, based on a comparison to other cases, some of which havebeen mentioned, I would be substantially lowering the bar for the application of those provisions. [114] I note the remarks of the Alberta Court of Appeal, at paragraph 290 of the Neve decision: There is no doubt that Neve has a history of offending the law; and we cannot say that Neve will not reoffend.

That risk exists and it is areal risk. Indeed, it would be naive to think otherwise. However, the question is not whether there is a possibility or even a probability ofNeve’s reoffending in the future. While this consideration certainly goes on the scale, the central question which must be addressed atthis stage is whether, given her past record and the various factors that we have noted and assessed, Neve falls within the intended smallgroup of dangerous offenders in Canada. In our view, she does not. [115] As the court declined to define Ms.

Neve as a dangerous offender, I, in a somewhat similar manner, decline to define H.A.S. as along-term offender "in the totality of circumstances" and context that I have partially reviewed here. [116] With respect to sentence, on File 71773, Count 1, there will be a sentence of six years for sexual assault with a weapon, reducedto one year, with credit for five years, based on two and a half years at a two-for-one ratio. This is effectively a one-year jail sentence. [117] This is permissible as per R. v. H.P.W., 2001 ABCA 224, following R. v.

Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455. [118] There will be a SOIRA order. I believe that is a 20-year order, is it? [119] MS. GAUDET: Yes. It is, Your Honour. [120] THE COURT: There will be a DNA order. There will be s. 109(3) lifetime weapons prohibition, due to the prior orders thatwould have been imposed for the other offences.

H.A.S. will have 15 days to arrange for the surrender of any such items to theSaskatoon Police department. [121] I believe this matter predates the victim fine surcharge, but in any event, I decline to order a victim fine surcharge. [122] Consecutive to the one-year sentence, there will be the following sentences, all of which will be concurrent with each other, for aglobal sentence of two years.

[ 123 ] On File 71292, Count 1, assault causing bodily harm, a sentence of one year; a victim fine surcharge of $100; and three years' time to pay. [ 124 ] With respect to all the victim fine surcharges, there will be three years' time to pay. [ 125 ] On Count 2 of 71292, the unlawful confinement charge, a sentence of 6 months.

On Count 5 of 71292, the breach of recognizance charge, there will be a sentence of 90 days and on both matters a $100 victim fine surcharge. [ 126 ] On 72470, possession of a weapon without a licence, there will be sentence of 45 days and a $50 victim fine surcharge. [ 127 ] On File 72471, on Count 1, the assault of R. C., there will be a sentence of six months with a victim fine surcharge of $50.

On Count 2, utter threats, a sentence of six months and a victim fine surcharge of $50. [ 128 ] Part of the purpose of the sentencing is to qualify H.A.S. for federal time, where he can access possibly better and newer programming than such as he has already accessed over the past two-and-a-half years. [ 129 ] It is possible that H.A.S. may be more eligible for parole on the non-sexual assault files, and the transition from jail to parole to probation may be of benefit to him.

H.A.S., if he continues to access the programming in prison and maintains sobriety and continues to be of good behaviour, would present as a good candidate for early parole, keeping in mind that the offence date for his most serious conviction goes back to 1991. [ 130 ] There will be a probation order for a period of three years, attaching to all of the files. The probation order will include the statutory conditions. H.A.S. is to keep the peace and be of good behaviour.

He is to report to the adult probation office nearest to his place of release within five days of release from custody and thereafter as directed. [ 131 ] He is to notify his probation officer of his place of residence and notify his probation officer prior to any change of his place of residence. [ 132 ] He is not to consume or possess any alcohol or other intoxicating substance.

He is not to be found on the premises of any establishment where alcohol is the primary commodity for sale, except in the course of his employment or with the written permission of his probation officer, such written permission to be carried on his person and presented to a peace officer upon demand. [ 133 ] He is not to consume or possess any illicit substance as defined by the Controlled Drugs and Substances Act except pursuant to a valid medical prescription. [ 134 ] He is to have no contact, directly or indirectly, with either R. C., M. C., J. G., or S.

S., unless with the written permission of his probation officer as part of a restorative justice program. He is not to attend within 200 metres of any residence or place of employment of any of the above-named individuals. He is not to approach within 50 metres of any of the above-named individuals, except in the presence of a peace officer or a probation officer. [ 135 ] He is to participate in such psychological or psychiatric assessments as directed by his probation officer.

He is to take such counselling as may be directed by his probation officer, including at a residential treatment facility for a period of up to 90 days, and complete such counselling as may be directed to the satisfaction of his probation officer. [ 136 ] There will also be a condition that H.A.S. is not to have in his possession any firearms or ammunition or any weapon as defined by the Criminal Code or any imitation of a weapon.

He is not to have in his possession when outside his place of residence any knife or other sharpened instrument, except that he may use tools in the course of his employment and he may use cutlery for dining. [ 137 ] MS. GAUDET: I don't think there is anything else. [ 138 ] MR. WRIGHT: No. I think that's fine. [ 139 ] THE COURT: Again, I express my thanks to counsel for the very professional way in which the case was conducted. [ 140 ] H.A.S., a thanks to you as well, for the admissions that were made and sparing the victims from further participation. Mr. Wright will explain things further to you.

Hopefully, you will be a candidate for early parole. Hopefully, you will continue with your efforts. It seems, as I had indicated, that you are starting to get all the pieces of the puzzle together to make things work. And there is a lot of life left before you, if you use it well. [ 141 ] Thank you, Madam Clerk. (REASONS CONCLUDED)