Her Majesty the Queen - v. -, 2011 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 035 Date: February 17, 2011 Information: 24309620 Location: Onion Lake, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dwight Dillon Appearing: Michel Piche For the Crown Emma Kytwayhat For the Accused DECISION K. J. YOUNG , J INTRODUCTION [ 1 ] The Crown has applied pursuant to

Part XXIV of the Criminal Code for an order designating the accused to be a dangerous offender. [ 2 ] The predicate offence, being a sexual assault, occurred prior to July 1, 2008, and, accordingly, the provisions of the Code in force at that time are applicable.

[ 3 ] The Crown filed the required consent of the Attorney General for this application and the Court found reasonable and probable grounds that the accused might be found a dangerous or long-term offender as required by s. 752.1. [ 4 ] The Court appointed Dr. Richard Holden, PhD to perform the assessment pursuant to s. 752.1 of the Criminal Code . Dr. Holden’s report is dated June 23, 2009. THE LAW [ 5 ] Dangerous offender and long-term offender proceedings are sentencing hearings. A sentencing hearing is not a trial of guilt or innocence, so, with some exceptions, the strict rules of evidence do not apply.

As long as the evidence is deemed credible and trustworthy, it can be relied upon by the sentencing judge, even if it is hearsay. [ 6 ] The Court can consider institutional records and police reports as well as previous psychiatric reports. These reports invariably include hearsay. Care must be taken in determining how much weight should be given to reports containing hearsay. [ 7 ] Judge H. M. Harradence in R. v. Natomagan , 2010 SKPC 7 , gives a

summary of the applicable law on page 3 of his decision: There exists an array of case authority in this province from all levels of Court which provides guidance on dangerous offender/long-term offender applications. In

summary, the following principles are applicable to this hearing: * The Crown has the onus of proof beyond a reasonable doubt to establish that the offender fulfils the criteria in s. 753. * The principles of sentencing contained in the Criminal Code , ss. 718, 718.1 and 718.2 including any Gladue factors flowing from s. 718.2 (

e) must be considered by the Court. * If the Court is satisfied that the criteria in s. 753 relating to a designation of dangerous offender has been proven by the Crown, the Court shall, prior to imposing a dangerous offender designation, and an indeterminate sentence, consider whether the long-term offender provisions in s. 753.1 are applicable. * When considering whether there is a reasonable possibility of eventual control of the risk in the community the Court must recognize that this is a prediction of future behaviour.

It is the Court that must be satisfied and neither the defence nor the Crown bear an onus of proof in the traditional sense. * When considering the possibility of eventual control in the community the Court must not equate this with hope or empty conjecture and must recognize the mere possibility that the offender might benefit from treatment is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control. The overriding concern in an application to designate an offender as a dangerous offender is the protection of the public. [ 8 ]

Section 753 of the Criminal Code provides that a Court may find an offender to be a dangerous offender if it is satisfied he or she has been convicted of a serious personal injury offence and that he or she constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing specified kinds of behaviour. The relevant parts of s. 753 read as follows: 753.

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the Court shall find the offender to be a dangerous offender if it is satisfied (

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

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, ( ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable

consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (

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

b) of the definition of that expression in

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

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

(5) If the Court does not find an offender to be a dangerous offender, (

a) the Court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the Court may impose sentence for the offence for which the offender has been convicted. [ 9 ]

Section 753.1 of the Criminal Code provides that a Court may find an offender to be a long-term offender if it is satisfied that it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted, there is a substantial risk that the offender will re-offend and there is a reasonable possibility of eventual control of the risk in the community. The relevant portions of this

section read as follows: 753.1

(1) The Court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

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

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

(2) The Court shall be satisfied that there is a substantial risk that the offender will re-offend if: (

a) the offender has been convicted of an offence under

section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), subsection 163.1(3) (distribution, etc., of child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(4.1) (accessing child pornography),

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

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

b) the offender (

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

(3) Subject to subsections (3.1), (4) and (5), if the Court finds an offender to be a long-term offender, it shall (

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

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

section 753.2 and the Corrections and Conditional Release Act .

... If the Court does not find an offender to be a long-term offender, the Court shall impose sentence for the offence for which the offenderhas been convicted. [10] Analysis of these provisions requires the Court to reference decisions of the Supreme Court of Canada and the Saskatchewan Court of Appeal. In R. v.

Johnson, 2003 SCC 46 , [2003] 2 S.C.R. 357, 177 C.C.C. (3d) 97, 13 C.R. (6th) 205, the SupremeCourt refers to its earlier decision in Hatchwell, (SCC), [1976] 1 S.C.R. 39, and states: [30]...the dominant purpose of preventive detention is “to protect the public when the past conduct of the criminal demonstrates apropensity for crimes of violence against the person, and there is a real and present danger to life or limb”. Absent such a danger, there isno basis on which to sentence an offender otherwise than in accordance with the ordinary principles of sentencing.

The principles ofsentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist lessrestrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offenderdesignation are insufficient.

The essential question to be determined, then, is whether the sentencing sanctions available pursuant to thelong-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s.753(1) have been met. [30] In order for the sentencing sanctions available pursuant to the long-term offender provisions to reduce the threat associated with anoffender who satisfies the dangerous offender criteria to an acceptable level, it must be possible for the same offender to satisfy both thedangerous offender criteria and the long-term offender criteria.

To repeat, the three criteria that must be established on a long-termoffender application are: (

i) it must be appropriate to [page 377] impose a sentence of imprisonment of two or more years in respect ofthe predicate offence; (ii) there must be a substantial risk that the offender will re-offend; and (iii) there must be a reasonable possibilityof eventual control of the risk in the community. On a dangerous offender application, the sentencing judge must be satisfied that theoffender constitutes a threat to the life, safety or physical or mental well-being of other persons, on the basis of a pattern of repetitive orpersistent aggressive behaviour, brutal behaviour, or sexual misconduct described in s. 753(1)(

a) and (b). [11] Earlier case law in Saskatchewan had held that the Crown had a burden in these cases to negate the prospect of the accusedbeing sentenced as a long-term offender. This line of reasoning has been reversed by our Court of Appeal in the case of R. v. Haug(2008), 229 C.C.C. (3d) 132, [2008] S.J. No. 100 (QL), 2008 SKCA 23, and finally in R. v. Moosomin, [2008] S.J. No. 812 (QL), 2008SKCA 169, [2009] 1 W.W.R. 608, 239 C.C.C. (3d) 362, where the Court stated definitively at para 40: There can be no burden of proof on the Crown to negate the third criterion contained in s. 753.1 in the way in which the burden of proofis usually conceived.

Section 753.1 places an obligation upon the sentencing judge to be satisfied on the basis of all the evidence that“there is a reasonable possibility of eventual control” of the offender’s risk “in the community.” This is not a question of satisfactionbased on proof beyond a reasonable doubt or any other standard of proof. Practical considerations will play a role in motivating both theCrown and the defence in these kinds of proceedings.

It will be advantageous to the Crown, as well as the defence, to provide whateverevidence will assist the Court in determining whether the offender’s risk in the community can be managed to an acceptable level. [12] It is now established that there must be some firm, reliable evidence that the risk of the offender re-offending in a violent waycan be managed in the community. It was concluded in R. v.

Haug, supra (para. 89): The mere possibility that the offender might in the future benefit from treatment, to which he has been completelyunamenable in the past, is not sufficient to warrant a conclusion that there is a reasonable possibility of eventual control of the risk of re-offending. [13] In R. v. Redwood, [2009] S.J. No. 583 (QL), 2009 SKCA 113, the Saskatchewan Court of Appeal stated at para. 16: There is no need for the Crown to show that the offender has absolutely no prospect of successful treatment while incarcerated.

That is,because a Crown witness cannot say that there is absolutely no chance an offender might change in the future, is no reason for the judgeto necessarily conclude that there is a reasonable possibility of control in the community. On the other hand, the suggestion of possibleprograms, in no way proven to exist at the moment or with a reasonable prospect of being efficacious if indeed they were implemented, isnot sufficient to bar a designation as a dangerous offender.

BACKGROUND [ 14 ] Mr. Dillon is now 37 years old. He is of aboriginal descent. His criminal offending appears to have begun around seven or eight years of age. His first conviction for sexual assault was in 1990 when he was 17 years of age. Considerable details of Mr. Dillon’s background are contained in Dr. Holden’s report, which is an appendix to this decision. [ 15 ] Mr. Dillon’s criminal record up to the predicate offence is as follows: DWIGHT DAYTON DILLON DOB 11 APR 73 CRIMINAL RECORD 1988-11-02

(1) BE & THEFT (1-3) PROBATION 1 YEAR LOON LAKE, SASK. SEC 306(1)(

b) CC (YOUTH COURT) (2 CHGS) RCMP LOON LAKE (88-1466, 88-1483)

(2) BE WITH INTENT SEC 306(1)(

a) CC (4 CHGS)

(3) FAIL TO ATTEND COURT SEC 133(2)(

b) CC 1989-11-15

(1) BE & THEFT (1-2) PROBATION 15 MOS & LOON LAKE, SASK. SEC 348(1)(

b) CC 30 HRS COM SER & PROH (YOUTH COURT) (RCMP LOON LAKE DRIV 3 MOS 89-1145)

(2) DRIVE WHILE OVER 80 SEC 253(

b) CC 1990-09-13

(1) BE & COMMIT SEXUAL (1) 9 MOS & PROBATION 15 MOS MEADOW LAKE, SASK. ASSAULT (YOUTH COURT) SEC 348(1)(

b) CC POSSESSION OF STOLEN (2-4) 6 MOS CONC & PROB PPTY 15 MOS

SEC 355 CC

(3) FAIL TO ATTEND COURT (REVIEWED TO PROBATION) SEC 145(2)(

b) CC 15 MOS ON MAY 15, 1991

(4) BREACH OF PROBATION SEC 26 YOA (3 CHGS) (RCMP LOON LAKE 90-0401) 1993-07-13 DRIVING WITH MORE $400 I-D 40 DAYS LOON LAKE, SASK. THAN 80 MGS OF ALCOHOL IN BLOOD SEC 253(

b) CC (RCMP LOON LAKE) 1993-09-14 (1)DRIVING WITH MORE (1) 27 DAYS & PROB 6 MOS LOON LAKE, SASK. THAN 80 MGS OF ALCOHOL IN BLOOD SEC 253(

b) CC

(2) DRIVING WHILE (2) $500 I-D 50 DAYS DISQUALIFIED SEC 259(4) CC 1994-02-08

(1) DRIVING WHILE (1) 30 DAYS & PROH DRIV 9 MOS LOON LAKE, SASK. DISQUALIFIED SEC 259(4) CC

(2) FAIL TO COMPLY WITH (2) 30 DAYS CONC PROBATION ORDER SEC 740(1) CC (2 CHGS)

(3) DRIVING WHILE (3) $500 I-D 30 DAYS & PROH DISQUALIFIED DRIV 9 MOS SEC 259(4) CC

(RCMP LOON LAKE 93-1337) 1998-05-21

(1) SEXUAL ASSAULT (1) 5 YRS FED PEN & 10 YEAR MEADOW LAKE, SASK. SEC 271 CC FIREARMS PROHIB

(2) BE & COMMIT SEXUAL (2) 1 YEAR CONC ASSAULT SEC 348(1)(

b) CC (RCMP LOON LAKE 97-0842) 1998-07-28

(1) DRIVING WHILE (1) 45 DAYS LOON LAKE, SASK. DISQUALIFIED SEC 259(4) CC

(2) MISCHIEF (2) 30 DAYS SEC 430(1) CC (RCMP LOON LAKE 98-321 98-379) 2004-05-11 DRIVING WITH MORE $1000 & PROH DRIV 2 YRS LOON LAKE, SASK. THAN 80 MGS OF ALCOHOL IN BLOOD SEC 253(

b) CC (RCMP LOON LAKE 2004-0393) 2005-11-14

(1) DRIVING WHILE (1) 6 MOS MEADOW LAKE, SASK. DISQUALIFIED SEC 259(4) CC

(2) OBSTRUCT PEACE (2) 4 MOS CONC OFFICER SEC 129(2) CC

(3) FAIL TO APPEAR (3) 3 MOS CONC

SEC 145(5) CC (RCMP LOON LAKE 2005-0160)

(4) ASSAULT (4) 4 MOS CONS SEC 266 CC (RCMP MEADOW LAKE 05-873676) 2008-04-17

(1) DRIVE WHILE IMPAIRED (1-2) TIME SERVED LLOYDMINSTER, SASK. SEC 253(

a) CC (CREDITED 9 MOS)

(2) DRIVE WHILE DISQUALIFIED SEC 259(4) CC (RCMP ONION LAKE 07-696002) An overview of Mr. Dillon’s sexual offences is as follows: DWIGHT DAYTON DILLON A.K.A.: Dwight Dayton Ben, Kevin Ben DOB: April 11, 1973 FPS: 543986C Dwight Dayton Dillon has a history of committing sexual assaults and other sexually motivated offences. He has served 4 provincial jail sentences ranging from 27 days to 10 months. He has served 1 federal term of incarceration for breaking into the residence of a female and sexually assaulting her while she slept, the second of 3 similar offences. In light of his history and his recent conviction of sexual assault, Mr. Dillon is a candidate for a

Part XXIV application. OVERVIEW OF VIOLENCE AND FEDERAL INCARCERATION Offence Date: April 3, 1990 Offences: BE & Commit Sexual Assault [s. 348(1)(

b) CCCI] Victim: C.K. Place: Meadow Lake, Sk. According to a Prosecutor’s Information Sheet, on April 3, 1990, Dwight Dillon entered the house of C.K. as she slept with the intent to sexually assault her. Dillon approached C.K.as she slept face down on the couch. He rubbed her bum and felt her between her legs until she awoke and told him to leave. He said no and told her he wanted to have sex with her. She managed to push Dillon to the doorway

while he continued to feel her between her legs. Once at the door, Dillon stopped, dropped his pants, and proceeded to masturbate prior to being forced out [of] the house. C.K. locked the house and Dillon continued to prowl around outside for approximately ½ hour until she was able to leave the house and go for help. Sentence Date: September 13, 1990 Sentence: 9 months (Youth Custody) & 15 months probation Offence Date: July 19, 1997 Offences: Sexual Assault [s. 271(1)(a)CCCI], BE & Commit Sexual Assault [s. 348(1)(

b) CCCI] Victim: M.B. Place: Loon Lake, Sk. According to a Prosecutor’s Information Sheet, on the evening of July 19, 1997, Mr. Dillon arrived at M.B.’s (victim) house requesting a ride. M.B. agreed to drive him, but couldn’t due to car trouble. He then asked her to walk behind her house as there was something there that he wanted to show her. When she walked behind the house, Mr. Dillon grabbed her legs and started to rub them, and told her that he liked her and wanted to go out with her. She was not interested and went inside her home. Mr.

Dillon returned to the home at approximately 2:00 a.m. in the morning on July 20, 1997. The victim was sleeping on a mattress in the living room, along with 3 babies. Mr. Dillon attended to the residence uninvited in a drunken state, and entered the house through the front door which was unlocked. He then turned off all the lights, went to the kitchen, where he put some lard on a wash cloth, went to where M.B. was sleeping, pulled her pants off, rubbed the lard all over his penis, and then put his penis inside her. The victim awoke to find Mr. Dillon having sex with her, and immediately pushed him off.

He told her that he would give her $1,000.00 if she didn’t tell her husband. M.B. was screaming for help and striking Mr. Dillon. He finally left through the front door as she now had armed herself with a wheel wrench. She then locked all the doors, and began flashing all of the lights hoping help would arrive. M.B. had no telephone. Mr. Dillon meanwhile unscrewed the outside bulbs, and tried unsuccessfully to climb into the house through the bedroom window. While she was screaming for help looking out her living room window, Mr.

Dillon dropped his pants and was masturbating while looking at her, and stated, “I want to suck your ass and I want to lick it”, and “I want to do it to you”. M.B. and the babies were all screaming for help, while she continued flashing the inside lights, and Mr. Dillon kept masturbating. He left the scene about 10 minutes later. Sentence Date: May 21, 1998 Sentence: 5 years, s. 100 order for 10 years This sentence marked Mr. Dillon’s first term in federal custody. Upon admission to Saskatchewan Penitentiary, Mr. Dillon would not take responsibility for his offence and continued to deny that it ever took place.

Furthermore, Mr. Dillon was not truthful when asked about his previous sexual assault convictions. The Case Needs Identification and Analysis identified Mr. Dillon as a high- need/high-risk offender who required considerable intervention in the areas of substance abuse and person/emotional orientation (sexual deviancy). While on the Intake Assessment Unit, Mr. Dillon completed 4 out of 7 Addiction Education Program sessions. His performance was described as being “poor” with little participation and a bad attitude. Offence Date: April 25, 1998 Offence: Mischief [s. 430(1)(c)CCCI] Victim: E.M., D.B.

Place: Loon Lake, Sk. According to a Prosecutor’s Information Sheet, on or about April 25, 1998, Dwight Dillon was intoxicated and arrived at the residence of E.M. and her daughter, D.B., early in the morning. He was not related or friends with either of the victims. Mr. Dillon entered the residence without knocking and was very loud, waking up other members of the household, and then left when requested to by E.M.. This occurred several times over the course of the morning, and then at one point Mr. Dillon would not leave.

When D.B. re-entered the kitchen at one point, he was found standing, with his pants down, masturbating while looking at her. The victim screamed at Mr. Dillon and told him that she was phoning the police. The police were then contacted and then he left. Sentence Date: July 28, 1998 Sentence: 30 days consecutive to sentence serving

Dillon was assessed as a medium security inmate and moved out of the Intake Assessment Unit. A pre-treatment risk assessment was done and Mr. Dillon scored as a “moderate” risk to re-offend non-violently, violently, and sexually. In response, Mr. Dillon enrolled in the Moderate Intensity Aboriginal Sex Offender Program where his performance was poor. He was permanently suspended from the program a few days prior to its completion. Reasons for Mr. Dillon’s suspension include lack of participation, motivation, and insight, tardiness, and absenteeism. Subsequent to his unsuccessful completion of the program, Mr.

Dillon was reassessed and his risk for sexual recidivism was upgraded to “high” and his overall post-treatment assessment of risk was upgraded to “moderate to high”. In addition, the sex offender treatment team recommended that Mr. Dillon participate in a high intensity sex offender program to more effectively address his problem areas. In addition to being suspended from the Aboriginal Sex Offender Program, Mr. Dillon was also suspended from school on three occasions for lack of attendance and attentiveness.

His third suspension, a permanent suspension, was viewed as the only option as specific measures designed to help Dillon succeed were not taken seriously. This subsequently led to Mr. Dillon being discharged from the Cognitive Living Skills Program as his literacy level was far below the standard needed to complete the course. To his credit, he did complete the Society of Aboriginal Addiction Recovery Program (SOAAR). Program facilitators expressed no concerns with Mr. Dillon during the program. Mr.

Dillon was transferred to the Regional Psychiatric Centre (RPC) on March 28, 2001, to attend the high intensity Wellspring Sex Offender Program. Initial reports indicated that Mr. Dillon was responding much better to this program than to the programs offered at Sask. Pen. A Detention Review was conducted in July of 2001 and the National Parole Board agreed that his recent motivation to address his criminogenic needs was not sufficient enough to warrant release. A Detention Review Decision Sheet dated July 18, 2001, and authored by the National Parole Board explained their decision.

The Board wrote: You had not demonstrated any degree of motivation to address your criminogenic factors in a meaningful way until recently and you remain a moderate to high risk to re-offend. There is no adequate form of supervision that could offer adequate protection to the public from the risk you pose. Mr. Dillon’s transfer to the Regional Psychiatric Centre was determined to be successful. During his incarceration at RPC, Mr. Dillon successfully completed the Wellspring Sex Offender Program, the Offender Substance Abuse Pre-release Program (OSAPP), and the Aboriginal Substance Abuse Program.

In addition, he attended AA meetings regularly and worked full-time. Program reports indicated that Mr. Dillon’s participation was excellent with no concerns. He also accepted full responsibility for his offending, something he couldn’t do at the start of his sentence. In light of Mr. Dillon’s progression at RPC, an updated Psychological/Psychiatric Assessment Report was ordered to reevaluate his risk. The report, dated April 24, 2002, and authored by Farzad Zare-Bawani, addressed Mr. Dillon’s reduction in risk. Zare-Bawani concluded: Mr.

Dillon has completed a major part of his correctional programming, with satisfactory results. Thus, much of what has been defined as risk has been addressed. For Dynamic Risk Factors, the VRS-Sex Offender Version shows the positive effects of treatment. Thus, Mr. Dillon has a low risk level for no-violent [ sic ] re-offending, for violent re-offending, and for sexual re-offending. Given Mr. Dillon’s progress at RPC; given the assessment of dynamic risk factors, and given the large reduction in scope of his needs, I recommend the said patient for statutory release in the community . Mr.

Dillon was released on a one-shot Statutory Release to Saskatoon on June 18, 2002, with special conditions to abstain from intoxicants and live in an approved Community Correctional Centre (CCC) or Community Residence Facility (CRT). He was placed at the Meewasinota Aboriginal Health Centre and referred to the Community Orientation Program, the Sex Offender Maintenance Program, and the Choices: Substance Abuse Maintenance Program. Initial reports indicated that Mr. Dillon was adjusting well and that there were no concerns. Warrants of suspension and apprehension were issued on July 22, 2002, after Mr.

Dillon failed to return while on a weekend pass. Mr. Dillon was to attend a Powwow on his home reserve and he was to be accompanied by a support person from the Saskatoon Community Chaplaincy. There was some miscommunication and a misunderstanding in which Mr. Dillon believed he was able to stay for one more day and return without his support person. In light of the misunderstanding, the warrant of suspension was subsequently cancelled and Mr. Dillon was allowed to return to the Aboriginal Healing Centre.

Warrants of suspension and apprehension were again issued on September 3, 2002, after Dillon failed to return to his residence. He eventually returned two days later on September 5, 2002. After a post-suspension interview, parole officials decided to cancel the warrant of suspension and let Mr. Dillon return to the Aboriginal Healing Centre. Prior to his Warrant Expiry, Mr. Dillon successfully completed the Community Orientation Program, the Sex Offender Maintenance Program, and the Substance Abuse Maintenance Program. There were, however, a few behavioural concerns that arose while Mr.

Dillon was living at Meewasinota. For instance, Mr. Dillon had to be warned about making sexually inappropriate comments towards female staff and students at the CRT. Additionally, Mr. Dillon was found to be in possession of pornography and admitted to entering adult

video stores to view pornography. Lastly, there were some concerns involving Mr. Dillon’s motivation to find employment. It appeared he was quite content with not finding work although he did manage to find a casual part-time position towards the end of his residency. In

summary, his attitude while on Statutory Release can only be described as fair. At the conclusion of his sentence (August 3, 2003), Mr. Dillon was assessed as being a low- risk for sexual recidivism and considered manageable in the community. Offence Date: November 10, 2005 Offence: Assault [s. 266 CCCI] Victim: G.R. Place: Meadow Lake, Sk. According to police reports, on or about November 10, 2005, at around 11:30 p.m., RCMP were contacted by G.R. explaining the incident that had occurred. She expressed that Mr. Dillon had left her residence following an argument they had, and had been drinking.

G.R.had locked all doors and secured windows once he had left. Mr.Dillon returned and entered the house through a kitchen window and grabbed G.R.. Mr. Dillon slammed G.R. into the kitchen counter and then punched her in the face once with a closed fist. Mr. Dillon then insisted that G.R. go to bed and sleep. Mr. Dillon fled the scene when G.R.’s daughter called the RCMP and was found shortly after in the basement of another residence. G.R. had a sore left ear from the punch from Mr. Dillon and a sore side from being pushed into the counter, but she did not want or receive medical attention.

Sentence Date: November 14, 2005 Sentence: 4 months, DNA order HISTORY OF GENERAL CRIMINAL BEHAVIOUR Mr. Dillon has incurred a total of 21 Criminal Code convictions, 5 of those occurring while he was a youth. As previously outlined, 5 of his convictions are violence or sexual related. Of the remainder, 4 convictions are for break and enter and theft, all of which occurred while Mr. Dillon was a youth. He has 4 breach related convictions, including 2 probation breaches and a fail to appear.

Lastly, the remaining 8 convictions are all driving related offences that include impaired driving and driving while disqualified. PREDICATE OFFENCE(

S) AND OTHER OUTSTANDING OFFENCES Offence Date: June 16, 2007 Offence: Sexual Assault [s.271(

a) CCCI] Victim: G.M. Place: Onion Lake, Sk. According to police reports, on or about June 16, 2007, the victim called Onion Lake RCMP and reported that she had been sexually assaulted by Mr. Dillon. She explained that she had been taken to an unknown house, was intoxicated and passed out. The victim explained how she woke up approximately four times throughout the night and found herself being sexually assaulted, both anally and vaginally by the accused. The victim was scared and crying throughout the assault until approximately 9 a.m., when an unknown female agreed to drive her back to her boyfriend’s house.

Mr. Dillon was in the vehicle but fled once the victim told Mr. Dillon that she was going to go forth with charging him for sexual assault. Dr. Holden’s report also contains a

summary of Mr. Dillon’s earlier sexual offences.

[ 16 ] The predicate offence for this hearing occurred on June 16, 2007, at Onion Lake, Saskatchewan. The accused was acquainted with the victim and her boyfriend. They had all worked together as cleaning staff at the Lloydminster Husky Upgrader. They had all been drinking on the night before the assault. The accused had been on a five-day drinking binge to this point in time. The victim and her boyfriend had been driven to their house by Mr. Dillon so she could change clothes, as they had planned to go to a nightclub in Lloydminster later that evening. She came out first and got into the van driven by Mr.

Dillon. While waiting for her boyfriend to come out, Mr. Dillon drove off in the van. When they pulled away, she asked the accused to stop. Mr. Dillon and another male passenger responded with laughter. She was taken to a house in Onion Lake. She blacked out. When she awoke on a bed in a bedroom, the accused was behind her with his penis inside her vagina. He then pulled her hair and had anal intercourse. She told him to stop during these assaults. When she had tried to escape, the accused grabbed and twisted her toes.

He also bit a chunk of skin out of her back, pulled out some of her hair and bruised her arms and legs. Dr. Chan, who examined her the next day, confirmed these injuries and testified that the bruising to her arms was consistent with her being held down. DR. ROGER HOLDEN [ 17 ] Dr. Roger Holden has a PhD in psychology and is employed as a consultant and clinical psychologist. His expertise in forensic pathology is extensive and he is well qualified as an expert for the purposes of this hearing. He has practiced in specialties analysing physical and sexual violence for more than thirty years.

He is a past employee of Correction Services of Canada where he designed treatment programs. He is currently in private practice in Red Deer, Alberta. Throughout his extensive testimony Dr. Holden professionally presented himself correctly as a “Court” witness, as opposed to a “Crown” witness. [ 18 ] Dr. Holden interviewed the accused on two occasions, May 19 and May 20, 2009, at the Saskatoon Correctional Centre. Total interview time was 5 ½ hours. During the interview Dr.

Holden had in his possession materials from Corrections Canada and materials, transcripts and statements pertaining to earlier convictions of the accused. [ 19 ] On June 23, 2009, Dr. Holden filed an extensive report in compliance with the Court Order. [ 20 ] Dr. Holden is doubtful that Dwight Dillon is treatable with programs available in the correctional facilities. His report, and his opinions therein, are of great assistance in resolving the issues to be decided in this hearing. Accordingly, his entire report is included in this decision as Appendix “A” . [ 21 ] In his report at page 39 Dr.

Holden states: In my opinion, Mr. Dillon’s subsequent behaviour speaks for itself. Even after apparently successfully being involved in intense treatment programs he re-offended in a manner similar to the other offences prior to treatment. ... In this respect, in my opinion treatment has been entirely unsuccessful in teaching Mr. Dillon alternative ways of containing sexually deviant impulses and expressing them more appropriately. Later on page 42, Dr.

Holden states: In my opinion, he has a very strong impulse to commit sexual assault and this has not been at all diminished by the kinds of intense sex offender programming that he has been involved in. Similarly, he has, apparently, been thought to have made some gains in his substance abuse programming. However, again, his desire to drink appears very strong and treatment efforts have not prevented his relapsing into drinking again. He does not consider himself a violent man, despite all his programming, and did not mention a need for intense post release sex offender programming at all in his release plans.

It is of considerable concern to me that his closest family supports (or, at least, the lady I spoke to) sees only his drinking as a problem – which appears to ignore the probability that Mr. Dillon is a serial rapist.

There was no mention in the interview of the impact his assaults have had on his victims. In the interview, he continually minimized his culpability, attributing his behaviour to his being intoxicated at the time. A minimum expectation of any treatment intervention is that the perpetrator sincerely expresses remorse for his assaults. A failure to do so strongly suggests a very poor prognosis for treatment gain. I have serious doubts that Mr. Dillon is treatable using the present cognitive-behavioural based programs available within the correctional system. DR. TERRY NICHOLAICHUK [ 22 ] Dr.

Nicholaichuk is a forensic psychologist with many years of experience. He was called as a defence witness. His complete report is attached as Appendix “B” to this judgment. Dr. Nicholaichuk completed his report having had the benefit of reading Dr. Holden’s report. He took issue with some of Dr. Holden’s findings. The reports speak for themselves. There is a stark difference in how these two professionals rate Mr. Dillon’s intelligence and prospects. [ 23 ] Dr. Holden assesses Dillon’s intelligence at the 12 th percentile with an IQ of about 82. Dr.

Nicholaichuk assesses him as moderately mentally retarded in the 1 percentile range with an IQ of 50. Nicholaichuk attributed his poor performance in federal institutions in large part to his intelligence. [ 24 ] Dr. Holden confirmed that in years past anyone below an IQ of 70 was considered mentally retarded for social services purposes. Holden testified that an IQ of 50 would be 1 in 10,000 people. Anyone with this low an IQ would have difficulty tending to their toiletry needs. Dr. Holden testified that an IQ of 50 bore no relationship to Mr. Dillon. [ 25 ] I prefer the testimony of Dr. Holden on this issue.

Mr. Dillon was employed at the time of the predicate offence. He testified in his own defence. His answers were all appropriate to the questions asked. He went through his upbringing, his family, the schools he attended, and his relationships. He seemed to have a strong episodic memory; he could remember the names of the programs he took in the penitentiary, the names of prison officials and elders who worked with him. On cross-examination he performed very well. He offered treatment solutions to his offending behaviour and answered all questions appropriately. [ 26 ] Dr. Nicholaichuk’s opinion of Mr.

Dillon’s IQ at 50 causes me concern. However, I do not believe that the pegging of his intelligence will be determinative of the issues. As well, Dr. Nicholaichuk was, by chance, the prison psychologist at the Saskatoon Regional Psychiatric Centre who signed off Mr. Dillon as a low-risk to re-offend just prior to his release. When he entered the program he had been assessed as a high-risk to re-offend. Dr. Holden could not recall any patient going directly from a high to a low ranking. JAMES GONZO [ 27 ] James Gonzo is employed by Corrections Canada.

At the time of the hearing he was the segregation manager for the Prairie Region. Mr. Gonzo was a parole officer from 1998 to 2003. [ 28 ] During Mr. Dillon’s last time in prison from May 21, 1998, until June 18, 2002 (when he was released to a halfway house), Mr. Gonzo was his parole officer for most of the time. [ 29 ] In his testimony Mr. Gonzo went through the detailed institutional reports that were created during Mr. Dillon’s penitentiary sentence. Mr.

Gonzo was helpful in explaining the institutional rules and the functions of various officials and the purpose of the various reports that are required by legislation and prison policy. OTHER WITNESSES

[ 30 ] Isabelle Ben testified on behalf of the accused. She is his 88-year-old grandmother, who raised him at Loon Lake after his parents died. She testified with the benefit of an interpreter who, as it turned out, was a later witness for the accused. She was unaware of the accused’s misconduct as a youth. She was unaware of him committing any offences, yet she acknowledged visiting him in the penitentiary. She had no knowledge of the predicate offence or why Dwight was in jail. She characterized him as a good boy. [ 31 ] Helen Ben , the accused’s aunt, testified.

Helen Ben is a Tribal Chief with the Meadow Lake Tribal Council. She has a Bachelor of Education degree and classes towards a Masters degree. I found Ms. Ben to be very articulate and a very helpful witness. She was the sworn interpreter for her mother, Isabelle Ben. She grew up in the same household as the accused. She had noted signs of FAS in the accused. She was not aware of any of his legal problems other than two sexual assaults. [ 32 ] Ms. Ben heard from the accused that he was framed by his cousin on the predicate offence. When pressed on cross- examination, Ms.

Ben confirmed that she believed the accused was framed. Ms. Ben also confirmed that she had advised the accused’s parole officer in 1998, when he was in the penitentiary, that the accused was innocent of the rape charge for which he was serving. [ 33 ] The prosecutor confronted Ms. Ben on how she thought she could help the accused if she didn’t believe he did anything wrong. Ms. Ben believed that part of the accused’s problem was alcohol and he should not put himself in a position where he might get blamed for something.

She believed the accused should be released back to the community and their close-knit family where he could receive the support he needed. Ms. Ben believed that the accused had been on remand for three years on the predicate offence. She was of the view that he needed to find employment to help him maintain a good lifestyle. [ 34 ] Christopher Ben , the accused’s brother, testified. Mr. Ben is a carpenter who lives on the reserve with his five children. He has had the accused stay with him prior to the predicate offence. Mr.

Ben grew up with the accused, but was unaware of him peeping in windows or setting fires as a youth. Mr. Ben had been told by the accused that he was going out with a girl at Onion Lake, and when her common-law showed up, she turned around and blamed it on him. Mr. Ben, as well, believed the accused was innocent. [ 35 ] Sidney Ben , the accused’s uncle, testified at the hearing. Mr. Ben is a wellness addictions counsellor on the Loon Lake Reserve. Mr. Ben had a long and sorry experience with alcohol before he turned his life around. Mr.

Ben testified that he had operated a camp in the year 2008 where the accused attended and worked as a security guard. Mr. Ben also works as a counsellor at the Mistahey Musqua Treatment Centre. This centre conducts a 32-day program with a refresher in December. Mr. Ben testified that he does not keep good paper records and was not sure if the accused attended the program, but he did remember him being there for the two-week refresher in December. During his testimony Mr.

Ben had trouble remembering the accused’s name, but assured the Court that if he were released he would put in place a treatment plan for the accused. In re-examination it became clear that the accused had taken a 28-day program in July of 2008, after he was charged with the predicate offence. [ 36 ] Barbra Cantre , an addictions worker from Loon Lake, also testified at the hearing. She has worked as a counsellor since 1995. Ms. Cantre described the cultural aspects of a 28-day program she worked on.

When shown certificates, she indicated she had seen certificates like the ones shown, but due to graveyard shift work she was unable to go to the marble ceremonies that occur when people graduate from the program. She did not appear to be familiar with the certificates shown to her. The marble ceremony appears to involve the successful participant receiving a glass marble upon graduation. Ms. Cantre indicated she had had the opportunity to work with Mr. Dillon.

When asked if she could recall when this occurred she replied: I cannot tell you when it was, but during that time when he did come, I did an assessment on him, and then he was requesting to go into treatment, but I – I’m not aware when this is because I work with so many people. And then in my file, I guess, but I wouldn’t be able to go through that without his consent because what we do is very confidential . It was, accordingly, unclear as to whether this treatment was before or after the predicate offence. DWIGHT DILLON [ 37 ] The accused testified at his dangerous offender hearing. Mr.

Dillon outlined his upbringing and family members. He could recall some of the teachers from the Ernie Studer School in Loon Lake. He accounted for his girlfriends, including the length of the

relationships and why they broke up. Mr. Dillon testified that he has a child with Gloria Johnson, who is now in the care of his brother. [ 38 ] Mr. Dillon explained that the reason he did poorly at the school in the penitentiary was because he was afraid of other inmates and could not concentrate on his work. Mr. Dillon advised that although he took numerous other programs in the penitentiary, such as addictions and anger classes, he was unable to concentrate due to his fear of other inmates. [ 39 ] Mr.

Dillon expressed the same fear of inmates knowing he was a sexual offender at the Saskatoon Regional Psychiatric Centre. It was unclear from his testimony as to why he was so successful at the Psychiatric Centre programming. [ 40 ] When the prosecutor questioned the accused about the details of his various sexual assaults, the accused was reluctant to confirm the details. On each assault he informed the prosecutor that he was drunk at the time. [ 41 ] When asked about why he was in custody, he replied that he had a drinking problem. When pressed, he acknowledged that he had held down and raped M.B..

He also admitted to raping G.M.. PENITENTIARY REPORTS [ 42 ] On May 21, 1998, Mr. Dillon was sentenced to five years, two months and fourteen days for break and enter and sexual assault and other offences. June 18, 2002, was his first release to a halfway house. [ 43 ] During his stay in the penitentiary, Mr. Dillon had considerable difficulty. His teacher reported she could not teach him and requested a hearing test. On admission it was recorded that Mr. Dillon did not want to discuss his sexual offending or take responsibility for his behaviour. He seemed to have little understanding of his criminal behaviour.

His public safety risk was assessed as high. His overall assessment, which included factors such as escape risk, resulted in him being assessed as a medium security inmate. [ 44 ] Later, on November 4, 1998, in a progress

summary, it was reported that Mr. Dillon had not been an administrative or security problem since his arrival, however, the writer of this report concluded that Mr. Dillon’s attitude toward his sex crimes was problematic. He took little responsibility for his crimes and showed little remorse. He blamed his incarceration on his abuse of alcohol. [ 45 ] Mr. Dillon took

part in a two-month aboriginal addictions recovery program which commenced in September of 1998. Unfortunately, in the final report the organizer concluded that Mr. Dillon was not able to concentrate on the information presented, however, it was believed he did have the potential to use the information presented. [ 46 ] In September of 1998, Mr. Dillon also began the level one school program. He was suspended from this program because of little work progress, consistent tardiness, failure to attend and failing to adhere to school rules.

The teacher concluded that his behavioural needs far exceeded his academic needs. [ 47 ] In May of 1999, a very detailed psychological assessment of Mr. Dillon was completed by Dr. Dhaliwal. This report was a pre-treatment assessment of risk prior to him entering the Aboriginal Sex Offender Program, which is a moderate intensity program lasting four to six months. The report was done to establish a baseline from which to compare the success of the program after completion. In the assessment Dr. Dhaliwal reports: At the beginning of the interview, Mr.

Dillon claimed that he cannot understand English, requiring a translator during the interview. However once two translators, including an elder, were then included in the interview, he began to speak the English language quite fluently. It was very apparent during the clinical interview that Mr. Dillon was not willing to disclose personal information that was being asked of him to the writer, answering questions with vague brief answers, often slurring or covering his mouth so that it was extremely difficult to understand him.

The report found Mr. Dillon a high-risk to re-offend sexually. Mr. Dillon denied most of his current offence and minimized many parts of it. He showed no empathy and stated , “Everyone back home knows how she is, that she is lying.” [ 48 ] Regarding criminal attitude, Dr. Dhaliwal reported: During the clinical interview, Mr. Dillon smiled broadly and was almost laughing when recalling stories of drinking binges and fights that he was involved in.

He stated that he does not feel that his present conviction will have an effect on his life, and that his sentence is not fair because “I went to court and told them I didn’t rape her. Sometimes I feel like I’m in here for no reason.” At the time of this assessment Mr. Dillon was 25 years old. [ 49 ] Mr. Dillon began taking the aboriginal offenders program at the beginning of April 1999. This program consisted of five modules, all presented within a cognitive-behavioural approach.

Learning consisted of class presentations and discussions, one-on-one counselling sessions, homework assignments and in-class exercises. The four modules included: 1) cognitive strategies; 2) anger management; 3) social competence; 4) victim awareness. The fifth module, self-management, was ongoing throughout the program. [ 50 ] While taking the Aboriginal Sex Offender Program, an interim report was completed in July of 1999. Mr. Dillon had missed one session and had been late on a number of occasions. He had unsatisfactory participation in group discussions.

However, he regularly attended pipe ceremonies and participated regularly in sweat ceremonies. Overall his motivation for participating in the program was assessed as questionable. [ 51 ] In August of 1999, a further interim report was completed. Mr. Dillon had not yet demonstrated an achievement of any of the five modules. Although he provided details of his offences as described in case files, he did not provide much surrounding these in terms of thoughts and feelings, planning or fantasies. Mr. Dillon was unable to demonstrate any understanding or insight into his deviant sexual cycle.

An evaluation of his cycle could not be accomplished due to his complete lack of insight, as well as the resultant unsatisfactory cycle presentation and assignment completion. [ 52 ] Mr. Dillon believed that it was his drunkenness that got him into trouble. Mr. Dillon was assessed in this interim report to still treat women as sexual objects for his gratification. [ 53 ] This interim report documents Mr.

Dillon’s disclosure that at around 17 or 18 years of age he began to hide in the bushes and houses watching women go by, and when they did, he would chase them, usually rubbing their legs, breasts and genital area. He stated that even though these women knew who he was, he was never charged or reported. He also had reported entering women’s homes and touching and watching them while they were asleep. [ 54 ] This report outlined the numerous efforts made by therapists and elders to get him involved, yet he had no motivation and made no effort to join in the programming. Mr.

Dillon was permanently suspended from the program just a few days prior to the completion of the program. After the program was complete, the treatment team met with the elder, Victor McIntyre, who was Mr. Dillon’s counsellor. This elder reported that Mr. Dillon never attempted one-on-one counselling with him, yet he attended sweats and pipe ceremonies, was honest and respectful and even assisted with some sweat ceremonies. [ 55 ] In November of 1999, Mr. Dillon had completed the Aboriginal Sex Offender Treatment Program and a detailed report was

generated by Corrections Canada. The report concluded that Mr. Dillon had not successfully completed the program. In

summary, he did not participate in group discussions, did not pay attention to the presentation and missed sessions. Again in this program Mr. Dillon requested a translator, but to the dismay of the program provider he spoke in fluent English when he wanted. [ 56 ] He did so poorly in this program that his risk for sexual offending, which was rated as “moderate” pre-treatment, was adjusted to “high” after completing this program. As he was unable to complete the moderate intensity program, the treatment team recommended that he take the high- intensity program.

The team, however, noted that it was questionable if Mr. Dillon had the motivation to participate in any further sexual offending programming. [ 57 ] The Saskatoon Regional Psychiatric Centre has a number of programs for offenders, including an aggressive behaviour control program, the Clearwater Sexual Offender Program, and the Wellspring Sexual Offender Program. Mr. Gonzo explained that the Clearwater program was a short six-month program designed for offenders who had no cognitive disability. The Wellspring program was both more intense and for a longer period. Mr.

Dillon eventually took the longer, more intense Wellspring program. This program is specifically designed for people with low intellectual ability (page 384 of the transcript). The Wellspring program has two presenters and one-on-one counselling. [ 58 ] In November of 1999, Mr. Dillon made his third attempt at school in a program that had been specifically modified for him. Mr. Dillon treated school as a joke. He was not prepared to abide by the rules of the school. He was permanently suspended. [ 59 ] In May of 2000, Mr.

Dillon voluntarily went into the segregation unit claiming he was threatened by other inmates who knew he was a sexual offender. From the prison reports it does appear that he was, in fact, threatened due to cigarette debts, which were overdue, that he had incurred with other inmates. The elders at the cultural centre complained about his lying to the case management team. A prison report in May 2000 noted: Since the end of November 1999, Dillon has been suspended from two work places, CORCAN Tailor Shop and CORCAN Industrial Paint Shop. The subject was also permanently suspended from the School.

This was his third attempt at upgrading his education. Dillon has not been cooperative with his CMT. He lied to them in order to get funds transferred from his savings account into his current account. The subject claimed he needed the money for hobby craft supplies. He has not been straight about how much his debt is. He has changed the story three or four times in the past week. This is all having a disruptive effect on the good order [of] the institution.

As a result of his actions, one offender is currently in Segregation, as well, Dillon has indicated that he does not feel safe and as a result, is currently in Segregation. The subject is not compliant with his Correctional Plan. He has successfully completed SOAAR and was recently suspended from the Who Spa Gone Program due to his placement in Segregation. He was suspended from the Aboriginal Sex Offender Program and Cognitive Living Skills Program. [ 60 ] His continual lying to his management team resulted in him requiring a high level of administrative intervention. When Mr.

Dillon advised he was willing to go to the Regional Psychiatric Centre for the high-intensity sexual offender programming, the prison staff believed he was lying to avoid a transfer to a maximum security institution. [ 61 ] In August of 2000, Mr. Dillon took his fourth attempt at schooling. Again he was permanently suspended due to lack of attendance and little work. The teacher concluded that he only enrolled in school to get paid. [ 62 ] Mr. Dillon’s statutory release date was November 8, 2001. His warrant expiry date was August 3, 2003.

If a parole officer believes it would be dangerous to release a prisoner on his statutory release date, he can set in motion a process that may result in a recommendation from Corrections Canada to the National Parole Board that the prisoner serve his entire sentence. This is called a “detention order”. This process initiated by the parole officer usually begins a year before the statutory release date. The process begins with a detention review pre-screening, which ensures that the legal requirements for the availability of a detention order are in place.

The matter then goes to the unit board and the final recommendation decision is made by the warden.

[ 63 ] In December of 2000, after completing the process, Mr. Dillon’s Unit Board commented: The Unit Board is unanimous in recommending a Detention Referral. Mr. Dillon is a repeat sex offender who more recently offended against a female relative in the presence of her 3 small children. For the most part, he has shown indifference to the victim. Of serious consequence is his failure at Cog. Skills, Who Spa Gan and the Aboriginal Sex Offender Program. He has also dropped out of upgrading programming (ABE). Mr.

Dillon was suspended from the Aboriginal Sex Offender Program in view of his repeated absences and his refusal to cooperate with the Elders and related lack of participation. Given the callous nature of his offending and lack of adequate remorse and program participation, it is not felt that alternate release options can be deemed manageable. The warden added: Dillon is serving a sentence for various offences, one of which was a Sexual Assault. He was suspended from the Sex Offender Program. He has failed to complete Cognitive Skills and Who Spa Gan.

The offender does have a previous Sexual Assault dating back to 1990 as a Young Offender and received 15 months probation. There is 17 months between his SR and WED. The MT support Detention and the WRB was unanimous in supporting Detention as he continues to present a high risk to sexually re-offend. Therefore, it is believed that he will commit a

Schedule I offence causing death or serious harm prior to Warrant Expiry. [ 64 ] On February 14, 2001, Mr. Dillon’s detention was recommended to the National Parole Board. On March 27, 2001, Mr. Dillon was approved to go to the Saskatoon Regional Psychiatric Centre for intensive sexual behaviour programming. By April 28, 2001, he was in the Saskatoon Centre. In July he had his detention hearing before the National Parole Board. At the hearing his grandmother, Isabelle Ben, his aunt, Helen Ben, and his brother, Christopher Dillon, attended with him.

It was reported that they provided a great deal of support for him and understood his offending history and his contributing factors. On July 25, 2001, the National Parole Board notified Mr. Dillon of their decision to detain him beyond his statutory release date. [ 65 ] On April 9, 2001, Mr. Dillon began the Wellspring Sexual Offender Program at the Saskatoon Centre. This is the longer- lasting, high-intensity program specifically designed for people with lower intellectual ability.

It was noted in June reports that he was actively participating in the programming and was cooperative with his case management team. A progress report in July 2001 noted that Mr. Dillon displayed good motivation and actively participated in group discussions. He completed his homework assignments and was working with aboriginal elders and the aboriginal program officer. Mr. Dillon was noted to have excellent attendance and his participation was increasing. After completion of the “Thinking Errors” portion of the program, it was reported that Mr.

Dillon provided his own examples of each of the thinking errors and demonstrated a beginning understanding of the cognitive behavioural chain. At this same time Mr. Dillon was participating in aboriginal programs. These included pipe ceremonies, sweat lodges, talking circles, cooking and feast preparations. Mr. Dillon was noted to be actively involved and participating in these programs as well. [ 66 ] In a progress report dated July 7, 2001, it states: Mr. Dillon is making effort to work on his problem areas and is also receiving counselling on his crime and understanding of why he committed his offence.

He acknowledges that he has broken the law and that he is remorseful for what he has done. He is sharing his life story and how this may have contributed to the development of how he became as a person. He realizes that he has been too passive and not learned how to express himself properly. He understands how he became addicted to substances. He states he is learning from the programs here particularly the Wellspring program. He is also preparing for his parole hearing and wrote a letter to his Chief and Council as well as to the National Parole Board. Provided by Dorene Sayer (Native Liaison) Mr.

Dillon has only just begun working (June 12, 2001). Reports from his work supervisor are positive. He has been described as being a “very hard worker”.

SUMMARY Mr. Dillon continues to attend to treatment objectives. He appears to be committed to making necessary changes as evidenced by regular participation in groups and gaining employment. He was further asked to work as a patient helper with the Native Liaison, due to his positive participation in Aboriginal Programming.

Mr. Dillon has been experiencing some stress due to his upcoming detention hearing in the fall. He has requested an elder assisted hearing, and in anticipation of this has sent paperwork to his Chief and Council for their support at the hearing. Mr. Dillon will speak with his parole officer about the hearing and the procedures for a detention review, thus helping to decrease his anxiety by providing him with an awareness of the process. [ 67 ] At his July 18, 2001 hearing before the National Parole Board, Mr. Dillon was denied parole.

He was informed that he should complete the Wellspring program and the offender substance abuse program and then re-apply to have his case reviewed for the removal of the detention order. [ 68 ] In a progress assessment dated April 4, 2002, it was noted: Through his progress in successfully completing the Wellsprings [ sic ] Sex Offender Program, OSAPP and the Aboriginal Substance Abuse Program, Dillon has successfully addressed these domain areas.

As well, Dillon has, even while maintaining 6 hours of programming per day, actively participated working full time and in the Aboriginal Programming, including all ceremonies. Dillon has accepted responsibility for his actions, and has chosen to actively address his dynamic factors. Dillon has an extremely high level of community support from his family. They remain supportive and openly encourage him to address his Correctional Plan. Since his arrival at RPC in March of 2001, Dillon has not been involved in any negative institutional behaviour.

He has openly approached his CMT with concerns, or questions, and actively sought help in addressing his programming assignments. The writer consulted the Institutional Preventative Security Officer (IPSO) R. Cossette on March 20/20 [ sic ]. According to IPSO, Dillon has not been involved in any criminal activities or organized crime groups within the institution since his arrival at RPC in March of 2001, and the[r]e are no IPSO concerns at this time. [ 69 ] An institutional interim report on the Wellspring Program gives some insight into the program.

The report dated May 15, 2002, states in part: The next step deals with what the individual had to do to overcome the external barriers to offending. This involves victim selection, grooming and planning. Dwight relates that he has been attracted to the victim since adolescence. He acknowledges that he attempted to get her consent to engage in sexual activity with him but she rejected him. Dwight then purposefully arranged to be at her home when he knew his cousin was not there. He initially assaulted her when she was sleeping, left and returned. Mr.

Dillon reports that he unscrewed the outside light as the victim was trying to attract attention through switching the light off and on. He attempted to break into the home but was unsuccessful. Dwight relates that he remained on her front porch for a length of time, watching her and masturbating. The final step is what the offender did after the offence. This includes things they did to avoid getting caught but also what they said, to themselves to make it seem okay. Mr. Dillon reports that he asked the victim not to tell.

As well, when the police arrived at his home the following day to charge him, Dwight relates that he hid in his home and instructed his wife to lie about his whereabouts. He finally, reluctantly, did turn himself into the police. Mr. Dillon tried to deny and then minimize his offending behaviour to both himself and his family and friends. He plead [ sic ] not guilty, forcing the witness to testify. Dillon’s Steps to Offending disclosure was extremely well done. He stated exactly what he had done, naming the behaviours without any denial.

He clearly articulated the effect of his offending on the victim and expressed remorse for his actions. He was also very respectful and supportive of his fellow group participants during their disclosures. The Wellspring Program uses a game format to teach relapse prevention. The game presents a number of scenarios that involve the key concepts of relapse prevention. The players advance in the game by successfully identifying risk situations and avoiding them.

The Safety Plan portion of the program also focuses on creating “ stop & go ” statements for high-risk situations. Mr. Dillon listed alcohol use, feeling rejected and thoughts of sexual entitlement as high-risk areas. The stop statement is a thought the patient creates to stop himself from engaging in the high-risk situation such as “ you don ’ t have to drink to have a good time ” . Then a go statement is created to get the patient away from the high-risk situation and doing something else such as “ play cards ” .

Go statements are always stated in the positive, to build the patient ’ s confidence and focus on his strengths. The stop statement developed for when Mr. Dillon is at risk to use substances is “ Bad things happen when I drink ” . The corresponding Go statement is “ I will go see Helen/Chris (family members). To deal with his feelings of rejection, Dwight will tell himself “ I ’ m not forgotten ” and then go visit someone. When Dwight is having thoughts of sexual entitlement he will say, “ I want to respect her ” and then tell himself “ I can ’ t stay here, I have to leave now ” .

These statements, if utilized, will address his high-risk situations. The elements Mr. Dillon included in his “ New Healthy Me ” are; forming a relationship with his son, not returning to his common-law relationship, engaging in traditional Native ceremonies and being involved with the Elders for counselling. He also plans to attend Alcoholics Anonymous. Dwight states that his leisure plan involves playing ball, exercising regularly, attending bingo and visiting with family. Mr. Dillon acknowledges that he will have to make new friendships with people who do not drink alcohol. Overall, Mr.

Dillon ’ s plan is simple, realistic and achievable. [ 70 ] In a report of May 15, 2002, it was noted that Mr. Dillon had completed his substance abuse programming with flying colours. His numerous performance indicators were all noted as good or excellent. Numerous institutional reports were created in May of 2002. These include assessments from three parole officers, from a psychologist, from a nurse, from an elder, and from a program supervisor. These reports all laud the effort and participation of Mr. Dillon, both within the Saskatoon facility and also in his substance and sexual offending programming.

These reports note he achieved a good understanding of the skills taught and strategies to manage aggression. The psychologist noted the positive effects of treatment and assessed him as a low-risk for each of non-violent offending, violent offending and sexual offending. [ 71 ] The error of this assessment became clear shortly after his release from the halfway house and finally with the predicate offence. These positive assessments resulted in the cancellation of his detention order in June of 2002. HALFWAY HOUSE [ 72 ] On June 18, 2002, Mr.

Dillon was released to the Meewasinota Aboriginal Healing Centre in Saskatoon. Conditions included an abstinence from alcohol and a curfew. Mr. Dillon was also required to attend Choices Maintenance and Sex Offender Maintenance programs. He was required to have at least four face-to-face meetings per month with his parole officer. [ 73 ] On November 22, 2002, an interim report pertaining to Mr. Dillon’s Sexual Offender Maintenance Program was completed. This report was completed by a program supervisor and was reviewed by Dr. Terry Nicholaichuk.

In the report it notes that through the successful completing of the Wellspring Program, Mr. Dillon’s risk to re-offend sexually was reduced to a “low” range. It was noted that his risk would escalate if he were to lapse into substance abuse. “Should he re-offend, history suggests a known adult female would be the most probable victim.” [ 74 ] Mr. Dillon successfully completed the Substance Abuse Program while at the halfway house. Mr. Dillon had some issues during the Sexual Offender Maintenance Program.

He was reported to have been talking in a sexually inappropriate manner to a female staff member and watching pornographic movies. By March of 2003 it was reported that his behaviour and attitude had deteriorated. He lacked motivation to find employment and was content to receive money from his band while living at the halfway house. In a report of March 12, 2003, Dr. Nicholaichuk has revised his risk to re-offend from “low” to “moderate low”. [ 75 ] Mr. Dillon’s warrant expiry date was August 3, 2003. He had to be released on that date.

The last institutional report created for him appears to be a Sexual Offender Maintenance Final Report created on July 28, 2003. In that report, again reviewed by Dr. Nicholaichuk, Mr. Dillon was assessed as a low-risk for sexual recidivism and considered manageable in the community. AFTER RELEASE [ 76 ] About seven months later, on April 2, 2004, he was charged with impaired driving and drive over .08. His readings were 200 mg. percent and 180 mg. percent. The accused continued on with somewhat regular criminal behaviour, as evidenced by the criminal record, up to the predicate offence.

ANALYSIS [ 77 ] The criteria for declaring Dwight Dillon to be a dangerous offender have been met. The predicate offence is a violent personal injury offence as described in s. 752 (

b) of the Criminal Code , and it seems clear that Mr. Dillon constitutes a threat to the life, safety or physical or mental well-being of other persons. This is established on the basis of the evidence of his numerous sexual assaults. It is also clear that his conduct in these sexual assaults demonstrates a failure on his part to control his sexual impulses, and the likelihood of causing injury, pain or other harm to other persons through his failure, in the future, to control these sexual impulses.

I find that the Crown has established these necessary prerequisite criteria required by s. 753 of the Criminal Code . [ 78 ] After these prerequisites have been established by the Crown, the Criminal Code directs that the Court, before imposing a dangerous offender designation, consider whether the long-term offender provisions are applicable.

For the long-term offender provisions to be applicable, the Court must, on all of the evidence, find a reasonable possibility of eventual control of the risk in the community. [ 79 ] This assessment as to whether the evidence establishes a reasonable possibility of eventual control of the found risk in the community becomes the paramount issue in this hearing. Clearly the nature of the risk found and the community the accused would reside in become important considerations. [ 80 ] All of Mr. Dillon’s sexual assault victims have been adult women with whom he has had an acquaintance.

All incidents occurred on an Indian Reservation after he had been drinking. Prior to the predicate offence, the Wellspring programmers had predicted that if he were to commit a further sexual assault, his most probable victim would be an adult female. They were correct. [ 81 ] Mr. Dillon managed to go three years and ten months from his release in August of 2003 until the predicate offence of June 2007. During this period he had more minor offences that did not result in a jail sentence.

It is of great concern that prior to the predicate offence he served a long penitentiary sentence where he received both counselling and programming in the areas of substance abuse, anger management and sexual offending. The Wellspring program, in particular, was a lengthy and intense program designed for people with a lower intellect. Some of his programming has been the best the prison system has to offer.

Additionally, he has participated in numerous aboriginal programs designed to help him with lifestyle, addictions and self-awareness. [ 82 ] The defence has suggested he can eventually be returned to his family in the Loon Lake area where he will receive family support and local counselling. Defence witnesses were called who outlined the family support and the counselling programs available in his community. I have no doubt that his relatives have the best intentions. They knew he had received a long sentence for sexual assault, as they had visited him in the penitentiary.

Many of these same relatives believe that Mr. Dillon has done no wrong. His drinking and driving offences after his release would appear to have occurred without their knowledge. Helen Ben did not appear to even know he had been working at the Upgrader, at least from his time of sentencing on May 24, 2004, on the .08 charge until the predicate offence in June of 2007. She believed that if he were to get a job this might help him lead a better lifestyle. He had a job when he committed the predicate offence.

The cultural counselling presently available to him at Loon Lake, at least from the witnesses called, would seem to be quite disorganized with little or no records being kept. [ 83 ] The Crown has argued that his excellent performance while in the Saskatoon Regional Psychiatric Centre can be attributed to his efforts to both avoid a transfer to a maximum security facility and also give him a chance to have his detention order lifted by the National Parole Board. I believe that these factors may well have played into his decision to perform better than he did in the penitentiary.

However, I believe his efforts were sincere. I believe he wanted to change. The numerous institutional reports created at the Saskatoon RPC were of considerable detail and penned by various staff members. Psychologists, parole officers, nurses and supervisors all believed Mr. Dillon was sincere in his efforts. I do not believe Mr. Dillon has the talent to fool that many people for that length of time. [ 84 ] The programming he received at the RPC may well have benefitted Mr. Dillon. He was assessed as a low-risk to re-offend sexually when he was discharged from the RPC.

This may well have been a correct assessment. It wore off quite soon. Even at the halfway house he was caught with pornographic magazines and he was reported to have been watching pornographic movies at an adult video store located near the halfway house. He was also reported to be making sexually inappropriate remarks to female staff members. Just seven months after his release from the system he was charged with impaired driving. His readings were in the aggravating range.

[ 85 ] Mr. Dillon conducted himself well during the hearing. He showed respect for all parties who participated. During his long prison stay he was not disruptive to the system. He was not in any fights and he had no gang affiliations. His segregation time was at his own request as he was afraid of another prisoner. He did not appear to have had any conflict with the guards or prison staff. His expulsion from classes was due to his lack of attendance and not doing his assignments or paying attention in class. He was not expelled for being rude or disrespectful to the teachers.

He has no record of confrontations with the police on any of his arrests; at best, he will run and hide from the police when he has the opportunity. When he testified at the hearing, he was a quiet witness who avoided eye contact. He was clearly embarrassed to discuss the details of his sexual assaults when pressed by the prosecutor. [ 86 ] Mr. Dillon was born to a severely alcoholic mother who died of her alcohol abuse when he was a young child. All indications are that Mr. Dillon suffers from Fetal Alcohol Syndrome (FAS). As a child he was exposed to domestic violence while his parents were drinking.

He has reported that as a child he witnessed intoxicated men sexually assaulting women who were passed out from alcohol. This background does put the Gladue considerations into play. [ 87 ] It is noted on page 14 of Dr. Nicholaichuk’s report that at the time of the interview Mr. Dillon still viewed the women he victimized as sexual objects. [ 88 ] Dr. Nicholaichuk conducted a variety of intelligence tests on Mr. Dillon. These are detailed on pages 17 through 20 of his report. In

summary, Mr. Dillon scored at or below the 1 percentile range on all tests other than one. Dr. Nicholaichuk concluded on page 20: A disability of this order coupled with alcohol intoxication could be reasonably expected to almost eliminate an individual’s ability to plan and anticipate, and judge the consequences of his or her behaviour. If this assessment of his intellect is correct, then this disability results in a very remote likelihood of him ever being successfully treated. On the other hand, if Dr.

Holden’s assessment is more correct, then he has clearly been unwilling or otherwise unsuccessful in putting the things he learned into practice. Neither assessment gives rise to a better hope of treatability. [ 89 ] In Dr. Nicholaichuk’s report on page 25, he opines that Mr. Dillon is not particularly motivated by deviant sexual activity; rather, history suggests that he repeats behaviours which he witnessed in his immediate environment and possibly were encouraged by his more criminalistic peers. [ 90 ] In challenging Dr. Holden’s findings, Dr.

Nicholaichuk noted that ordinarily people who are truly sexually deviant engage in carefully planning their offences. It was not clear as to where he received this information on deviancy. Dr. Holden says that sexual deviancy has nothing to do with planning. It defines the nature of the activity (page 773 of the transcript). Dr. Holden defined deviance as sexual arousal, interest, or behaviour that involves persons that fall outside of the realm of what is legal. Dr. Holden also refers to a 1999 report that referred to Mr.

Dillon going to malls and getting aroused by women’s underwear, masturbating while peeping in windows, jumping out of bushes and grabbing women and watching women sleeping. A number of his sexual assaults included his masturbating in fro

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