Her Majesty the Queen - v. -, 2021 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 14 Date: February 1, 2021 Information: 90183820 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Trevor John Charles Ms. Elizabeth Addabor For the Crown Ms. Estelle Hjertaas For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] This is an application pursuant to

section 810.2 of the Criminal Code . Corporal Solzhenitsyn Puentespina of the RCMP has sworn an application that he believes that Trevor John Charles will commit a serious personal injury offence and asks this Court to bind Mr. Charles to keep the peace and be of good behavior and to impose such other conditions as the Court deems appropriate by means of a preventative recognizance.

[ 2 ] This is the Crown’s third application of this nature. Mr. Charles’ criminal record discloses that he was bound by a preventative recognizance on March 8, 2012. More recently, Mr. Charles voluntarily agreed to be bound by a recognizance pursuant to s. 810.2 on February 28, 2019. [ 3 ] For the reasons that follow, I find it necessary that Mr. Charles again be required to enter into a preventative recognizance pursuant to s. 810.2 of the Criminal Code . While Mr. Charles just wants to be left alone, I am satisfied that it would be unsafe to do so.

SECTION 810.2 [ 4 ]

Section 810.2 deals with but one form of surety to keep the peace. It is preventative in nature and is not intended to be punitive. The purpose of a preventative recognizance is to maintain order and preserve the peace. See: R v Soungie , 2003 ABPC 121 , 341 AR 350 [ Soungie ]. Mr. Charles is not charged with a crime (by means of these proceedings) and no criminal conviction flows whether he voluntarily agrees to be bound by a recognizance, or one is ordered by this Court. Nonetheless, a recognizance would restrain Mr. Charles’ liberty and would undoubtedly interfere with his right to be left alone.

Criminal charges can flow from a breach of a preventative recognizance and, as Mr. Charles is aware, custody can result in the event of a conviction. [ 5 ] To be successful in its application, the Crown must prove, on the balance of probabilities, that the applicant’s fears are reasonable. In these proceedings, Corporal Puentespina is the applicant. There is both a subjective and objective component to be met by the Crown. See: R v Bird , 2010 SKPC 25 at para 5 , 367 Sask R 1, and R v Kitchener , 2014 SKPC 62 at para 5 .

To meet this test, I must be satisfied that the officer, in his own mind, honestly and actually believes that a serious personal injury offence – an offence of the type set forth in s. 752 of the Criminal Code – will occur unless Mr. Charles is bound by some form of recognizance. If I find that he does, I must then also be satisfied, based on the evidence presented in these proceedings, that Corporal Puentespina’s fears are objectively reasonable in all the circumstances. In other words, I must be satisfied that, unless Mr.

Charles is bound by some form of recognizance, there are reasonable and probable grounds to believe that he is likely to commit another serious personal injury offence. [ 6 ] Unlike a criminal prosecution, hearsay evidence is admissible and evidence is often presented through documentary records. For example, institutional records, such as the records prepared by Correctional Services Canada (CSC) and the Saskatchewan Ministry of Justice are admissible. See: R v Flett , 2013 SKQB 155 at para 24 , 419 Sask R 193. However, there are limitations on the admission of any documentary evidence.

For example, before I admit a document, I must be satisfied that it is credible and trustworthy. This often has to do with whether or not the documents were prepared under circumstances that establish their reliability. There is conflicting case law on whether or not reports containing opinion evidence, such as psychiatric and psychological assessments, are admissible without an assessment of the expert’s qualifications.

In R v Carriere , 2013 SKPC 36 at para 7 , the Court found that such reports were admissible for purposes of an 810.2 application – indicating that it would be a matter of weight to be attached to such evidence. In R v Mackie , 2020 ONCJ 360 at paras 49 & 67 , the Court concluded that unqualified opinion evidence is inherently untrustworthy and thus inadmissible. See also: R v. Ottertail, 2018 ABQB 920 at para 33 . [ 7 ] Furthermore, unlike a criminal prosecution, evidence of Mr. Charles’ past conduct is admissible. The actions of Mr.

Charles in the past assist the Court in determining whether Corporal Puentespina’s fear is objectively reasonable. In other words, whether Mr. Charles has been a violent or peaceful man in the past is relevant to assessing the likelihood of his potential for violent conduct in the future. See: Soungie at paras 27 & 28 . [ 8 ] This is not an effort to predict the future and I need not be satisfied beyond a reasonable doubt that Mr. Charles constitutes a serious and imminent threat to society.

Unlike a criminal prosecution, the burden of proof is on the balance of probabilities; I need only be satisfied that it is “likely” that Mr. Charles’ future conduct will result in serious injury to others. Furthermore, the threat need not be imminent provided I find that it is likely to occur based on Mr. Charles’ past conduct. See: Soungie at paras 20 to 26 . [ 9 ] Finally, if I am satisfied that the evidence establishes that Corporal Puentespina’s fears are objectively reasonable, I must also be satisfied that a preventative recognizance is required and appropriate in all the circumstances.

See: Soungie at paras 41 to 45 . Simply put, in exercising my discretion pursuant to s. 810.2 , I must balance two competing interests - the need to protect the public from a serious danger and Mr. Charles’ right to be left alone. EVIDENCE [ 10 ] The Crown called five witnesses, being Corporal Puentespina and four probation officers, all of whom supervised Mr. Charles

at some point during the preceding two years. It was apparent that each of the probation officers liked Mr. Charles and that they actively attempted to assist him when they could. Each spoke positively about those times when he did well under their supervision. [ 11 ] In addition, the Crown filed Exhibit P-1, which is a binder containing multiple documents, including Mr. Charles’ criminal record. I am satisfied that all of these documents are admissible with two exceptions.

Firstly, the report prepared for Crown Counsel by Sergeant Scott Hayes of the Prince Albert Criminal Investigation Division on February 7, 2019 is not admitted as evidence. This document was only tendered for narrative and not for the truth of its content. Second, the psychological/psychiatric assessment report completed by Robert McIntyre on December 24, 2010 is not admissible. The report does not set forth any information as to the author’s credentials only that Mr. Charles was referred for a psychological assessment pursuant to a policy of the National Parole Board.

While the institutional setting provides some basis to infer that the document is credible and trustworthy, the absence of any information as to the credentials of the author is, in my opinion, a problem. Furthermore, the assessment was completed over 10 years ago. Mr. Charles was 21 years old at the time. As a result, the probative value of this document is very limited. [ 12 ] Finally, Mr. Charles testified in his own defence. He is an articulate and well-spoken individual. [ 13 ] There is no doubt that Mr. Charles has displayed a propensity for lawlessness and violence in the past.

His criminal record discloses 40 entries, including nine convictions for serious personal injury offences. In 2006 (as a youth), Mr. Charles was convicted of robbery, break and enter, and assault with a weapon. In 2007 (as a youth), Mr. Charles was convicted of assault causing bodily harm and aggravated assault. In 2010, he was convicted of aggravated assault, robbery with violence, and then assault with a weapon. In 2014, he was convicted of assault with a weapon. In 2018, Mr. Charles was convicted of manslaughter for which he was sentenced to 5.5 years. [ 14 ] Mr.

Charles has served various periods of incarceration, including at youth facilities, at provincial correctional centres, and at the federal penitentiary. Prior to his release from custody following his manslaughter conviction, the Crown sought to have Mr. Charles placed on a preventative recognizance pursuant to s. 810.2 . [ 15 ] For Corporal Puentespina’s fear to be objectively reasonable, it must be predicated on Mr. Charles’ own conduct. Furthermore, because this is the second consecutive request for a preventative recognizance, the Crown’s application must be predicated on Mr.

Charles’ conduct since the granting of his last s. 810.2 order. Because a recognizance was issued by the Court, I must assume that the conditions of that order, including its duration, were deemed appropriate at that time. As a result, I will examine Mr. Charles’ conduct during and since his last preventative recognizance in determining whether or not the conditions for requiring Mr. Charles to enter into another order are again present. Obviously, it is necessary to examine his recent conduct through a lense informed by all of the evidence. However, in my opinion, the requirement for Mr.

Charles to be bound by another consecutive recognizance must be predicated on his conduct during and since his last order. Incidents since February 28, 2019: [ 16 ] As noted, with his consent, Mr. Charles was placed on a recognizance by this Court on February 28, 2019. He was in custody at the time.

The recognizance was for a period of 12 months and included conditions to report to a probation officer and the Prince Albert Police Service Criminal Investigation Officer as directed, to reside at an approved residence, to abide by a curfew, to not possess or consume alcohol or illicit drugs, to not possess any firearms, ammunition or weapons, and to attend treatment for violence, anger management and addictions. [ 17 ] Mr. Charles was released from custody on March 6, 2019. [ 18 ] Initially, Mr. Charles was supervised by Mr.

Chris Miller, a probation officer with the Saskatchewan Ministry of Corrections and Policing. Upon his release, Mr. Charles began residing in Prince Albert, Saskatchewan. He initially demonstrated good reporting habits but he withdrew from supervision after a couple of months. [ 19 ] During supervision, Mr. Miller discussed programing with Mr. Charles as required by his preventative recognizance. Mr. Charles had completed a number of programs (including Living without Violence, Addiction Education and Criminal Thinking Patterns) while in custody and was not interested in repeating these types of programs.

However, Mr. Charles expressed an interest in personal counselling and Mr. Miller arranged for him to attend Turquoise Tree Counselling and Wellness in April of 2019. Unfortunately, Mr. Charles did not attend his appointment with his counsellor. He was directed to follow up with Turquoise Tree, which he did. They were

full at the time but anticipated an opening in May of 2019. Unfortunately, Mr. Charles breached the terms of his recognizance before that could take place. [ 20 ] On May 1, 2019, Mr. Charles failed to report to the local RCMP and then a curfew violation was later noted. Mr. Miller reports that Mr. Charles failed to report to him on May 8, 2019. He was subsequently arrested on or about May 15, 2019 and sentenced on May 16, 2019 to 60 days in custody. [ 21 ] Mr. Charles was released from custody on June 27, 2019 with a continuing obligation to report. Mr. Miller testified that Mr.

Charles’ reporting habits had deteriorated. During their conversations, they discussed the issue of change. Mr. Charles expressed an interest in disassociating with anti-social peers. Mr. Miller stated his observation that Mr. Charles appeared to be aware that the negative outcomes he had been experiencing were the result of the choices he had been making and that he needed to start making changes in his life to avoid those negative outcomes. However, Mr. Miller observed that Mr. Charles did not yet appear to be able or willing to put together a plan for that to happen. [ 22 ] By July 10, 2019, Mr.

Charles had again withdrawn from supervision. When Mr. Miller followed up with Mr. Charles to find out why he was no longer reporting, his phone number was disconnected. Apparently, Mr. Charles had moved to Pelican Narrows. [ 23 ] On August 3, 2019, the RCMP in Pelican Narrows received a complaint that two individuals in that community (Chrissie Charles and Cohen Charles) were assaulted by Mr. Charles. Both complainants were intoxicated at the time of their interaction with the police. When sober, both complainants declined to provide statements.

No charges were laid and no breach was submitted. [ 24 ] On August 10, 2019, the RCMP in Pelican Narrows received a complaint from Mr. Charles’ mother (Geraldine Charles) indicating that he was intoxicated, “scaring the kids” and “hitting things in the house”. When police attended to the complainant’s address, Mr. Charles could not be located. No charges were laid and no breach was submitted. [ 25 ] On August 11, 2019, the RCMP in Pelican Narrows received a complaint from Latisha Charles reporting that Mr.

Charles and his brother, Blaine Charles, were outside with “bats and knives”, that they were both intoxicated, and that they were trying to “hurt people”. When police attended the complainant’s residence, Mr. Charles could not be located. No charges were laid and no breach was submitted. [ 26 ] On August 31, 2019, the RCMP in Pelican Narrows received a call from April Custer indicating that Mr. Charles was fighting in the street with other people. Mr. Charles was located by police and was intoxicated. While Mr. Charles was arrested for being drunk in public, he was later released.

No charges were laid and no breach was submitted. [ 27 ] On September 26, 2019, the RCMP in Pelican Narrows received a complaint from Mr. Charles’ mother (Geraldine Charles) indicating that he had kicked in the front door of her house and assaulted her pregnant daughter. When police attended, Mr. Charles could not be located. Later that day, the RCMP received another complaint from Mr. Charles’ mother indicating that he had returned, kicked the door in again, and was fighting with his brother, Blaine Charles. When police attended again, Mr.

Charles was located, he was intoxicated and, after a short run, he was arrested. Mr. Charles was released when sober. No charges were laid and no breach was submitted. [ 28 ] On November 19, 2019, Mr. Charles was arrested in Pelican Narrows by the RCMP. At the time of his arrest, Mr. Charles had visible injuries, including a ‘big goose egg” above his right eye. On November 29, 2019, Mr. Charles admitted two breaches of his preventative recognizance and was sentenced to 73 days in custody. [ 29 ] On November 25, 2019, Mr.

Charles was involved in an altercation with an inmate at the Prince Albert Correctional Centre. The institution’s records indicate that both individuals were active participants and the staff witnessed the inmates “exchanging blows”. The institution’s records also indicate that Mr. Charles was the instigator of this altercation which began when Mr. Charles punched the other inmate. When asked about this incident by his counsel, Mr. Charles testified that the other inmate hit him first. Mr.

Charles said he held the inmate on the floor, then waited for the correctional staff to intervene, and then let go as soon as the guards were present. Mr. Charles was not charged as a result of this incident. [ 30 ] On or about December 18, 2019, Mr. Charles was released from custody. Ms. Hayley Klassen began supervising him at that

time. Ms. Klassen is a probation officer with the Saskatchewan Ministry of Corrections and Policing. She met with him that day in Pelican Narrows. Ms. Klassen testified that she only met Mr. Charles once as he was arrested soon after. [ 31 ] On January 1, 2020, the RCMP at Pelican Narrows received a complaint that Mr. Charles was fighting people on the street. Mr. Charles was intoxicated. He was arrested and remanded in custody. On January 6, 2020, Mr. Charles was sentenced to five months and nine days in custody. [ 32 ] On January 4, 2020, Mr.

Charles and other inmates at the Prince Albert Correctional Centre were involved in a violent altercation. The institution’s records indicate that Mr. Charles was observed fighting with three other inmates and that one inmate “stomped on” Mr. Charles. When asked about this incident by his counsel, Mr. Charles testified that four inmates from a former gang (the “Kings”) – a gang that he no longer wanted to associate with – came into his cell and began assaulting him. Mr. Charles said he was able to get out of his cell and defend himself for a couple of minutes before correctional staff intervened.

The institution’s records indicate that Mr. Charles had open skin on his knuckles. [ 33 ] Mr. Charles’ previous preventative recognizance expired on February 27, 2020. Mr. Charles was in custody at the time. [ 34 ] On March 21, 2020, a number of inmates, including Mr. Charles, were involved in a large and violent incident at the Prince Albert Correctional Centre. The institution’s records indicate that, when a group of eight inmates entered the unit where Mr. Charles was located, he approached some of those inmates and they started fighting.

The inmates had been transferred from Regina and were believed to be members of a gang. The incident grew with multiple inmates physically attacking each other. Correctional staff used pepper spray to separate the participants. When asked about this incident by his counsel, Mr. Charles testified that the incident happened because two rival gangs (the “Kings” and the “West Side”) were put on the same unit by correctional staff. Mr. Charles said that things happened very quickly but that he was just defending himself. Mr.

Charles was not charged as a result of this incident. [ 35 ] On April 2, 2020, Corporal Puentespina swore his application seeking a preventative recognizance. Mr. Charles was still in custody. Unlike in 2019, Mr. Charles now disputes the Crown’s application for a preventative recognizance. [ 36 ] On April 6, 2020, Mr. Charles was released on a release order.

The conditions of his release included requirements to report to a probation officer, to reside at an approved residence, to abide by a curfew, to not possess or consume alcohol or illicit drugs, and to not possess any firearms, ammunition or other weapons. [ 37 ] Upon his release, Mr. Charles returned to Pelican Narrows, Saskatchewan. He reported by phone on April 7, 2020. Ms. Barbara Johnstone is a probation officer with Saskatchewan Ministry of Corrections and Policing. She testified that Mr. Charles called immediately upon his release and then called every week as required by his release order.

Because of COVID-19, Ms. Johnstone reported that she was not able to travel to Pelican Narrows and that she did not believe any programming was available in Pelican Narrows during the period she was supervising Mr. Charles. [ 38 ] Ms. Johnstone reported that Mr. Charles was permitted to temporarily relocate to Saskatoon in April/May of 2020 because his girlfriend at the time was pregnant and her pregnancy was deemed to be medically high risk. While in Saskatoon, Mr. Charles continued to report to Ms. Johnstone. Following the birth of the child, Mr. Charles returned to Pelican Narrows. [ 39 ] On June 2, 2020, Mr.

Christopher Read began supervising Mr. Charles. Mr. Read is also a probation officer with the Saskatchewan Ministry of Corrections and Policing. Mr. Read testified that Mr. Charles reported by phone and that he was consistent in reporting until September 17, 2020, when he abruptly stopped reporting. Mr. Read explained that he thought Mr. Charles was doing well. He had expressed an interest in seeking employment when he returned to Prince Albert and Mr. Read was assisting him to get ready for job interviews. Mr. Charles has New Charges pending before the Court : [ 40 ] On June 15, 2020, it is alleged that Mr.

Charles failed to abide by the curfew imposed by his release order and that he had consumed alcohol or some other intoxicant. Mr. Charles was arrested and charged. See: Information 90402832. This charge is still pending before this Court. Mr. Charles appeared in Court that same day. Mr. Charles was released on a new release order following a contested bail application. Pursuant to this second release order, he was then to reside in Prince Albert. In these proceedings, the Crown

elected not to call evidence as to the facts of this charge. [ 41 ] It is also alleged that Mr. Charles failed to report as required by his release order on September 17, 2020 and then again on October 9, 2020. A new charge was laid. See: Information 90411332. Mr. Charles turned himself in and was released on an appearance notice. This charge is still pending before the Court. In these proceedings, the Crown elected not to call evidence as to the facts of these breaches. [ 42 ] It is also alleged that Mr.

Charles assaulted Lesley Linklater causing bodily harm to her and that he uttered a threat to cause death or bodily harm to her on or about October 2, 2020 at Pelican Narrows. Mr. Charles was arrested about two weeks later (October 15, 2020) when new charges were laid by indictment. See: Information 90411316. He was held in custody pending a bail hearing. These charges are still pending before the Court. In these proceedings, the Crown elected not to call evidence as to the facts of these charges. [ 43 ] On October 27, 2020, Mr.

Charles was released on a third release order following another contested bail application. Pursuant to this release order, Mr. Charles was not to return to Pelican Narrows (except for court or with permission). [ 44 ] It is alleged that on November 13, 2020 Mr. Charles returned to Pelican Narrows without permission and, when approached by police officers, he resisted arrest by running away. Mr. Charles was arrested soon after and a new charge was laid. See: Information 90414783. These charges are also still pending before the Court.

In these proceedings, the Crown elected not to call evidence as to the facts of these charges. [ 45 ] On December 4, 2020, a contested bail hearing was conducted. Mr. Charles was denied bail on all matters before the Court, which included this application, the charge of assault causing bodily harm and uttering threats to Ms. Linklater, the charge of resisting arrested, and three alleged breaches of his various release orders. Mr. Charles’ Testimony : [ 46 ] Mr. Charles is 31 years of age. He has two children; David (age 11 years) and Hailey (age 9 months).

Both children live in Pelican Narrows, although Hailey is currently in care and resides with her aunt. Hailey’s mother is Lesley Linklater (the complainant in Information 90411316). They are no longer together. Mr. Charles has spoken with the Indian Child and Family Services Agency (ICFS) to determine the steps necessary to regain custody of Hailey. Mr. Charles testified that the birth of Hailey has motivated him to make changes in his life. [ 47 ] Mr. Charles testified that he grew up in a family that struggled with alcohol. As he put it, “everyone drank”. Mr.

Charles acknowledged that alcohol has been a problem for him but stated that he has been able to maintain his sobriety when in the community. [ 48 ] Mr. Charles obtained a high school equivalency (General Education Development - G.E.

D) while in custody. He liked his teacher, acquired an interest in reading, and began helping other inmates with their education programs. Mr. Charles testified that the programs that he took in custody were helpful. He said addiction programing helped him understand that he had a problem. He started to attend Alcoholics Anonymous (A.A.) while in custody and found it to be very positive. In addition to programming, Mr. Charles testified that he would meet with elders and the chaplain on a regular basis. [ 49 ] Mr.

Charles testified that, while in custody, he maintained an association with a gang and that he did so for protection. In cross-examination, Mr. Charles acknowledged that he was a member of a gang (first “Kings”, then “Last Kings”) for about 7 years. Mr. Charles testified that he no longer associates with the members of his previous gang and that he has not done so since January of 2020. [ 50 ] Mr. Charles testified that he worked for approximately 27 days in September/October of 2019 when he was at Pelican Narrows. He worked 20 days commercial fishing and 7 days cutting firewood for a local contractor. Mr.

Charles also described his desire to become a contractor in the future and the need to further his education to do so. His desire upon release is to attend Saskatchewan Polytechnic (formerly known as SIAST), to complete his education, and then to find work. [ 51 ] In cross-examination, Mr. Charles was asked about the breaches of his last preventative recognizance. Mr. Charles

acknowledged that he was “drunk” when he was at Pelican Narrows but stated that he was the victim of violence not the aggressor. Mr. Charles testified that he was beaten up at least twice by people in the community resulting in his hospitalization – one resulting in him being sent by air ambulance to Saskatoon for emergency medical attention. Mr. Charles believes that someone hit him on the back of the head with a steel bar. ANALYSIS [ 52 ] The Crown argues that Mr. Charles has an addiction issue, a propensity for violence, and an inability to self-regulate. The Crown argues that Mr.

Charles requires assistance in the form of programming, including personal counselling, to allow him to safely transition from the heavy controlled environment of incarceration to the community. The Crown points to Mr.

Charles’ breaches during his last preventative recognizance, the repeated need for police involvement when he was at Pelican Narrows, the calls to police by members of his family concerned for their safety because of his conduct, and even his own need for emergency medical assistance as a result of violence directed at him when he was intoxicated, in arguing that his conduct represents a risk to the community. The Crown argues that a preventative recognizance will help Mr. Charles to safely reside in the community.

The Applicant’s Subjective Belief: [ 53 ] Defence counsel cautions that Corporal Puentespina only met with Mr. Charles on one occasion and that he appeared to be unprepared from these proceedings. Counsel notes that the officer’s documents were disorganized and that some documents were missing. [ 54 ] I found Corporal Puentispina to be a credible witness and his evidence to be reliable (albeit somewhat disorganized). There is no doubt in my mind that the officer held an honest and actual belief that a serious personal injury offence will occur unless Mr. Charles is bound by some form of recognizance.

It was apparent that the officer felt a preventative recognizance was necessary. But more than just being concerned for preserving the peace, the officer also believed that a preventative recognizance would help Mr. Charles make meaningful change in his life and thus be a benefit to him. Objectively Reasonable Grounds for the Application: [ 55 ] Defence counsel argues that Mr. Charles is not a danger to others. Counsel notes the positive comments from probation officers about his reporting habits. Counsel also notes his engagement in programming while in custody.

Furthermore, counsel notes that, while there were multiple incidents requiring police involvement during August and September of 2019, no charges were laid and no breaches were submitted related to those incidents.

Counsel also notes that these incidents were over a year ago and that he has largely done well since then. [ 56 ] Counsel argues that he has learned from his mistakes, that he is doing better, and that he now has a plan to reside in Prince Albert with the positive support of family members. [ 57 ] Finally, defence counsel argues that the Crown cannot base its request for a preventative recognizance on a desire to prevent harm from coming to Mr. Charles.

Counsel noted that the purpose of a preventative recognizance is to prevent harm from coming to another person. [ 58 ] In light of all the circumstances, I find that Corporal Puentespina’s fear that Mr. Charles will commit another personal injury offence unless he is bound by some form of recognizance is objectively reasonable. While on his last preventative recognizance, Mr. Charles had compliance issues within the first two months and within five months was involved in five incidents requiring police involvement.

It is not necessary that these incidents resulted in new charges or breaches – that only goes to weight. See: R v Loysen , 2006 SKQB 290 at paras 17 & 18 , 280 Sask R 140. During August and September of 2019, the police were called five times by people (often family members) concerned about their safety because of alleged violent behaviour by Mr. Charles. It is possible that Mr. Charles’ involvement in one or two of these incidents was innocent or in self-defence. However, it is improbable in the extreme that his involvement in all of these incidents was innocent. More importantly, Mr.

Charles’ breaches and his conduct in the community resulted in serial incarceration, derailing any meaningful programing while in the community. [ 59 ] While in custody, Mr. Charles was involved in three violent incidents – two involving violence between gang members. All

incidents required intervention by staff – one requiring the deployment of pepper spray. [60] In addition, Mr. Charles now stands charged with a number of new offences, including a new serious personal injury offence(assault causing bodily harm). While Mr. Charles is presumed innocent of all of these charges, I am entitled to take notice of the fact thathe has incurred new charges and that one involves a personal injury offence within the meaning of the Criminal Code. [61] In light of Mr.

Charles’ nine prior convictions for serious personal injury offences, coupled with his poor compliance andrepeated police involvement while on his last preventative recognizance, and the fact that he now faces a new serious personal injuryoffence, there are reasonable grounds to believe that Mr. Charles’ future conduct will continue to represent a danger to public safety. Mr. Charles’ time in the community over the past 2 years was only intermittent and punctuated by repeated breaches and the need forpolice involvement.

The Exercise of Discretion: [62] The granting of a preventative recognizance pursuant to s. 810.2 involves the exercise of discretion. In addition to beingsatisfied that the grounds have been made out (which they have), I must also be satisfied that equity favours granting the remedy sought. [63] Defence counsel argues that, even if the grounds have been made out, the Court should decline to exercise its discretion.Counsel notes that Mr. Charles has spent years in custody because of one form of breach or another and that he now just wants to be leftalone. Counsel also notes that Mr.

Charles experienced both traumatic and negative consequences as a result of growing up as anAboriginal male. As a youth, he spent time in foster care, in group homes, and in a youth offending facility. In addition, Counsel notesthat Mr.

Charles grew up in a community with a disproportionately high volume of Criminal Code charges, with higher rates ofsubstances abuse, with reduced educational outcomes, and with limited employment opportunities. [64] In exercising the discretion set forth in s.810.2, I am mindful of the over representation of persons of Aboriginal descent in ourcorrectional facilities and the need to consider the unique systemic and background factors which may have played a

part in bringing Mr.Charles into conflict with the law in the past. See: R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433. I am also mindful of the words of theCourt in R v Zora, 2020 SCC 14, 388 CCC (3d) 1, (albeit in a different context) cautioning against imposing excessive or boiler-plateconditions or any condition that is not necessary and logically connected to the risks associated with the individual and circumstancesinvolved. [65] Having considered the evidence, I agree with the Crown that Mr.

Charles has demonstrated a propensity for violence and aninability to self-regulate while in the community during and since his last preventative recognizance. I also agree with the Crown thatMr. Charles continues to need assistance in transitioning from the highly controlled environment of incarceration (and the violent worldof gangs) back to the community. [66] While Mr. Charles may believe he has already taken the kind of programming he needs, the unfortunate reality is that over thepast two years he failed in the application of the skills he said he learned.

His conduct was marked by only brief periods of stability and,while these successes were trumpeted by his probation officers, the reality is they were few and far between. Most of the preceding twoyears was marked by repeated police involvement, multiple bail applications, and ultimately the need to separate Mr. Charles fromsociety. Most of the time, it was family who called police concerned about their safety because of Mr. Charles’ conduct. [67] Mr. Charles was in custody during this hearing having been denied bail on a number of charges pending before the Court.

During argument, I asked counsel for submissions on whether the fact that Mr. Charles was in custody affected these proceedings. It isoften the case that the subject of an application pursuant to s. 810.2 is in custody when an application is made. However, usually there isa discernable release date with the preventative recognizance being sought in anticipation of that release. I asked counsel whether thesematters should be held in abeyance pending the outcome of Mr. Charles’ other proceedings. Both parties asked that they not. [68] While it is unusual that Mr.

Charles is in custody with no discernable release date, upon reflection I am not satisfied that it isan impediment to the Crown’s application. Mr. Charles will be released at some point either by consent or by operation of law. While atone point it may have been suggested that the predicate grounds must be based on the risk of a serious and imminent danger – See: R vBudreo (1996), (ON SC), 104 CCC (3d) 245 - subsequent judicial consideration has not required that the risk beimminent. See: Soungie at para 20.

[ 69 ] In exercising my discretion to require Mr. Charles to enter into a preventative recognizance, I am aware that any order I make will become effective while Mr. Charles is in custody. I am also aware that a preventative recognizance will have little practical application until Mr. Charles is released from custody and that may not be for some time. However, as I have noted, Mr. Charles will be released at some point and, when he is, I am satisfied that it is appropriate and necessary that he be required to keep the peace, be of good behavior, and comply with such other conditions as may be deemed appropriate.

CONCLUSION [ 70 ] For the foregoing reasons, I find the Crown has satisfied me that there are reasonable grounds to believe that Mr. Charles will likely commit a serious personal injury offence. I am also satisfied that a preventative recognizance is necessary in all the circumstances to maintain order, preserve the peace, and prevent the occurrence of further acts of violence. [ 71 ] I shall hear counsel on what conditions should be imposed on the s. 810.2 recognizance, and what its length should be.

Dated this 1st day of February, A.D. 2021, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J